
    Global Frozen Foods Company, Petitioner, v Tony Serra et al., Respondents.
   —Proceeding pursuant to section 298 of the Executive Law to review an order of the New York State Human Rights Appeal Board (Appeal Board), dated February 17, 1984, which vacated an order of the New York State Division of Human Rights (Division) which had found there was no probable cause to believe that petitioner unlawfully discriminated against respondent Serra on the basis of a physical disability and remitted the matter to the Division for further proceedings.

Order confirmed and proceeding dismissed, without costs or disbursements, and matter remitted to the Division for a hearing as to respondent Serra’s continued ability to perform his duties.

We find that the Appeal Board’s review of the Division’s order was properly conducted within the statutory limitations outlined in subdivision 7 of section 297-a of the Executive Law. Moreover, based upon a review of the record, we agree with the Appeal Board’s determination that the Division’s finding of no probable cause to support respondent Serra’s complaint of unlawful discrimination was arbitrary, capricious and an unwarranted exercise of discretion as well as being unsupported by substantial evidence in the record. Petitioner has failed to present any medical evidence to establish that respondent Serra could not reasonably perform the responsibilities of his job despite his physical disability.

We note that our holding herein is not an ultimate disposition on the merits. It is merely a determination that, on the record, there exists probable cause to believe that petitioner employer unlawfully discriminated against Serra on the basis of a physical disability and that a hearing is necessary. Mollen, P. J., Titone, Thompson and Weinstein, JJ., concur.  