Opinion
June 9, 1997
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, and the matter is remitted to the State Division of Human Rights for further proceedings in accordance herewith.
The proper standard of review under the circumstances of this case is whether the determination of the Regional Director of the State Division of Human Rights (hereinafter SDHR) was arbitrary, capricious, characterized by an abuse of discretion, or clearly an unwarranted exercise of discretion (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231; Mayo v. Hopeman Lbr. Mfg. Co., 33 A.D.2d 310, 313). Since there was no hearing, SDHR may dismiss a complaint only if it appears that virtually as a matter of law the complaint lacks merit (Mayo v Hopeman Lbr. Mfg. Co., supra, at 313; see, Matter of Sayers v State Human Rights Appeal Bd., 89 A.D.2d 833; Matter of Flah's Inc. v. Schneider, 71 A.D.2d 993). Probable cause of unlawful discriminatory practice exists when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination (Matter of Doin v. Continental Ins. Co., 114 A.D.2d 724, 725; Matter of Vadney v. State Human Rights Appeal Bd., 93 A.D.2d 935, 936).
Here, the petitioner presented witnesses who also submitted affidavits tending to support his claim of discrimination. A question of fact was presented which required a public hearing, and the determination of SDHR that no probable cause existed to believe that an unlawful discriminatory practice had occurred was therefore arbitrary and capricious (see, Matter of Sayers v. State Human Rights Appeal Bd., supra; State Div. of Human Rights v. Blanchette, 73 A.D.2d 820; Matter of Rodriguez-Abad v. Hurst, 49 A.D.2d 115; Mayo v. Hopeman Lbr. Mfg. Co., supra).
Pizzuto, J.P., Santucci, Friedmann and Luciano, JJ., concur.