
    State Division of Human Rights, Petitioner, v. Winston A. Burnett Construction Company, Inc., et al, Respondents.
   Determination unanimously confirmed, without costs. Memorandum: The determination of the Division of Human Rights dismissing petitioner’s complaint for lack of probable cause has a reasonable basis in the record of the Division’s investigation and was, therefore, property affirmed by the Appeal Board (Matter of Jeanpierre v. Arbury, 4 N Y 2d 238; Matter of Prather v. State Comm. for Human Rights, 35 A D 2d 817). Upon that record it was reasonable for the Commissioner to find that the only position of a supervisory nature which respondents had available was filled on May 28, 1971 before petitioner’s interview with respondent Gonzales on June 17, and that no supervisory perspnnel was hired after that interview. In any event there is no factual basis in the record for petitioner’s conjecture that respondents refused to hire him because of his race, color or national origin. We note that the determination does not rest upon the subsidiary findings of the Division and the Appeal Board that the position in question required extensive experience in carpentry or that petitioner refused an offer to be considered for positions which might subsequently become available. The new matters submitted by petitioner upon the argument, although properly objected to by respondents (Executive Law, § 298; and see Matter of New York Tel. Co. v. Wethers, 36 A D 2d 541), have been considered. They do not furnish evidence to support the claim that respondents have unlawfully discriminated against petitioner. (Motion pursuant to section 298 of the Executive Law to review order of Appeal Board dismissing complaint.) Present — Witmer, J. P., Cardamone, Simons and Henry, JJ.  