Opinion
April 7, 1978
Present — Marsh, P.J., Moule, Cardamone, Simons and Dillon, JJ.
Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs, and matter remitted to Human Rights Appeal Board for further proceedings; cross motion for order of enforcement denied. Memorandum: The record supports the finding of the Division of Human Rights that petitioner was guilty of an act of unlawful discrimination against complainant because of his age. The order must be modified, however, by striking subparagraphs 1 and 2 of the second ordering paragraph. Although public employers are not excluded from the requirements of the Human Rights Law, the commissioner did not have the power to direct the petitioner to offer complainant the next available vacant position or to award back pay from June 29, 1974 until the offer of employment was accepted or rejected (City of Schenectady v State Div. of Human Rights, 37 N.Y.2d 421, 430; see, also, Matter of New York City Dept. of Personnel v New York State Div. of Human Rights, 56 A.D.2d 795, mod 58 A.D.2d 787). The matter is remitted to the Human Rights Appeal Board for further proceedings not inconsistent herewith to effectuate the purposes of the Human Rights Law (see Executive Law, § 297, subd 4, par c).