| N.Y. App. Div. | Oct 11, 1977
Proceeding pursuant to section 298 of the Executive Law to review an order of the State Human Rights Appeal Board, dated February 17, 1977, which (1) vacated a determination and order of the State Division of Human Rights, dated September 18, 1975, dismissing, after an investigation and upon a finding that no probable cause existed, respondent’s complaint of an unlawful discriminatory practice relating to employment, because of religious faith, and (2) remanded the matter to the State Division of Human Rights for further proceedings. Order confirmed and proceeding dismissed, without costs or disbursements. If the reasons set forth in the interoffice memorandum of the division, dated August 29, 1975, had been incorporated in, and were the basis for, the finding of no probable cause for believing that petitioners had engaged in the unlawful discriminatory practice complained of, we would have no hesitation in finding that such determination was free of an unwarranted exercise of discretion and of the arbitrary and capricious qualities barred by section 297-a (subd 7, par e) of the Executive Law. However, since the division’s finding of no probable cause did not recite the reasons mentioned in its aforesaid memorandum, or any others upon which it acted, the appeal board properly determined that this matter must be remanded to the division for further proceedings. Damiani, J. P., Shapiro, Mollen and O’Connor, JJ., concur.