Opinion
February 28, 1979
Present — Simons, J.P., Hancock, Jr., Schnepp, Callahan and Witmer, JJ.
Order of appeal board unanimously affirmed, without costs, and petition dismissed. Memorandum: In a proceeding brought pursuant to section 298 Exec. of the Executive Law petitioner seeks to vacate the determination and order of the Human Rights Appeal Board dismissing as premature petitioner's appeal pursuant to section 297-a Exec. of the Executive Law from a determination of the State Division of Human Rights finding probable cause. Petitioner contends that the State Division of Human Rights has been divested of jurisdiction because of delay and noncompliance with subdivisions 2 and 4 of the Executive Law. The division in moving to dismiss the appeal asserted that the finding of probable cause is a "non-final procedural determination" which is not reviewable by the appeal board pursuant to section 297-a Exec. of the Executive Law, and that "In so far as petitioner seeks to have the State Division of Human Rights divested of jurisdiction for alleged `protracted delay' a proceeding for such relief must be initiated in the Supreme Court under CPLR Article 78." (See Matter of Liverpool Cent. School Dist. v State Div. of Human Rights, 46 A.D.2d 1004). We agree with the appeal board's action in dismissing the appeal inasmuch as the division's determination is not an "order of the commissioner" that is appealable under the rules and regulations of the State Human Rights Appeal Board ( 9 NYCRR 550.1 et seq.), adopted pursuant to subdivision 5 of section 295 Exec. of the Executive Law to implement the provisions of section 297-a Exec. of the Executive Law. A determination of probable cause is not an "order, decision, determination of the division which makes, or has the effect of making, a final disposition of any complaint" ( 9 NYCRR 550.3 [i] [5] and does not meet the other criteria for an appealable order of the commissioner in 9 NYCRR 550.3 [i]). (See South African Airways v New York State Div. of Human Rights, 35 A.D.2d 516.)