46 A.D.2d 1001 | N.Y. App. Div. | 1974
Determination and order unanimously modified in accordance with memorandum, and as modified confirmed, without costs. Memorandum: Under section 298 of the Executive Law, A & P argues that the complaint should be dismissed because the division did not determine the question of jurisdiction and probable cause nor hold a hearing and make a final determination within the time periods provided by section 297 of the Executive Law. Complainant, 59 years of age, had been employed by A & P continuously from 1930. Since 1936 he had managed several stores for the food chain. On September 20, 1971, in consequence of his age, he was forced to accept early retirement. Three days later he filed a complaint alleging discrimination. On December 3, 1971 the division determined after “ investigation ” that there was probable cause to recommend a public hearing. A & P filed an answer on February 15, 1972 denying the allegations. The hearing commenced on April 20, 1972 and concluded on July 18, 1972. A & P then affirmatively waived the 20-day requirement for the commissioner’s determination by requesting 30 days to submit a brief after the transcript had been prepared. A month and a half was required to prepare almost 900 pages of transcript with numerous exhibits. The commissioner was entitled to sufficient time to review the charges and evidence presented. The order and decision were served on December 19, 1973. Among other provisions it contained a finding that A & P had discriminated against complainant because of his age and awarded him significant relief, requiring the employer to make him whole for the actual financial loss he had sustained and to offer him reinstatement to his previous position as a store manager. The record contains substantial evidence supporting the finding of discrimination. On January 2, 1974 A & P filed a notice of appeal and thereafter requested and received a 30-day adjournment from the board, over the objection of complainant. On March' 25, 1974 the appeal was argued and on