
    State Division of Human Rights, on the Complaint of Gerald Johnson, Petitioner, v American Can Company, Respondent.
   Determination unanimously confirmed, without costs. Memorandum: The Human Rights Appeal Board, without reaching the merits, dismissed petitioner’s appeal from the division’s order of no probable cause because the appeal board found the division delayed more than 180 days in investigating and determining his complaint of unlawful discrimination (see Executive Law, § 297, subd 2). All the parties to this proceeding concede, and we agree, that the statutory time limits are directory and not mandatory and that the appeal board erred in dismissing the appeal on these procedural grounds (see Matter of Sarkisian Bros, v State Div. of Human Rights, 48 NY2d 816; State Div. of Human Rights v Pennwalt Corp., Pharm. Div., 66 AD2d 1006). Nevertheless, we have examined the merits and the contentions of the petitioner as the parties request and we confirm the division’s finding of no probable cause (see Matter of Callaghan v State Div. of Human Rights, 72 AD2d 679). In view of the evidence in the record of petitioner’s unsatisfactory performance, respondent American Can Company was not guilty of unlawful discrimination in discharging him two weeks after he was hired. (Proceeding pursuant to Executive Law, § 298.) Present — Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.  