
    In the Matter of Ben V. Bolecek, Petitioner, v State of New York et al., Respondents.
   Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Division of Human Rights, dated July 29, 1987, which, after a hearing, found that the respondent the Board of Education Retirement System of the City of New York "did not discriminate against [the petitioner] because of his disability”.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The petitioner, who was retired from employment with the Board of Education in 1973 due to a psychiatric disability, was denied reinstatement in 1981, on the same ground. At the hearing held before the State Division of Human Rights on his claim of unlawful discrimination, the petitioner did present evidence that he was physically fit for duty in 1981, but failed to controvert the evidence that he suffered from a continuing psychiatric disability which prevented him from "performing in a reasonable manner the activities involved in the job or occupation sought” (Executive Law § 292 [21]). Therefore, we find that the respondent Division of Human Rights determination that the petitioner was not the victim of unlawful discrimination had a rational basis, was not arbitrary and capricious, and was supported by substantial evidence (Executive Law § 298). Thompson, J. P., Brown, Lawrence and Rubin, JJ., concur.  