
    State Division of Human Rights, Respondent, v Dunkirk Public School System, Petitioner.
   Petition granted, determination and order of appeal board unanimously annulled, without costs, and that of the State division reinstated and confirmed. Memorandum: Complainant filed with the State Division of Human Rights a complaint against petitioner herein, alleging that it engaged in unlawful discriminatory practice against her by reason of her age when it passed over her application for a full-time teaching position and employed four other teachers who are younger than complainant. Complainant had taught as a substitute teacher in petitioner’s school system. The division conducted an extensive investigatory hearing, extending for more than five hours. It heard many witnesses, several of whom were examined by complainant, and complainant also testified. The application of complainant and the four applications were received in evidence; and considerable evidence was received concerning complainant’s teaching ability and temperament, some of which was favorable and much of which was unfavorable to her. Based upon substantial evidence the division determined that there was no probable cause for the complaint, and dismissed it. On complainant’s appeal to the respondent appeal board, the latter found that there was probable cause for the complaint, reversed the determination of the division and remitted the complaint to the division for further proceedings in accordance with the Human Rights Law. Only where there is no substantial evidence to support the division’s determination may the appeal board reverse that factual determination. Since the division made a thorough investigation of this complaint and upon substantial evidence found no probable cause for it and dismissed it, the appeal board had no jurisdiction to reverse that determination. The petitioner’s motion to annul that determination is, therefore, granted and the determination of the division is confirmed (State Div. of Human Rights v New York State Drug Abuse Control Comm., 59 AD2d 332; State Div. of Human Rights v Merchants Mut. Ins. Co., 59 AD2d 1054). (Proceeding pursuant to Executive Law, § 298.) Present—Cardamone, J. P., Dillon, Hancock, Jr., Denman and Witmer, JJ.  