
    Eastman Kodak Company et al., Petitioners, v. State Division of Human Rights et al., Respondents.
   Petition unanimously granted, without costs, order of State Human Rights Appeal Board annulled and order of State Division of Human Rights reinstated. Memorandum: Respondent Forgensie complained that he lost his job because of age discrimination. The State Division of Human Rights dismissed the complaint without a hearing and the Human Rights Appeal 'Board vacated that determination and remanded the petition for further proceedings. Its reversal of the prehearing dismissal must be based upon a finding that the division acted arbitrarily (Executive Law, § 297-a, subd. 7, par. e; Long Is. R. R. Co. v. New York State Div. of Human Rights, 42 A D 2d 857; Mayo v. Hopeman Lbr. & Mfg. Co., 33 A D 2d 310, 313). Respondent Forgensie was employed in petitioner’s film processing department. The division’s investigation developed that over the years respondent encountered increasing difficulty in performing his duties satisfactorily because of the new processes and changing technology in the job. He admitted some difficulty in this respect and petitioner’s allegations were largely unrebutted at the division level and in the motion before the appeals board in which Forgensie sought a new hearing. Because of an anticipated reduction in force, Forgensie was offered a transfer to a lower paying job, layoff, or the option of electing early retirement under a temporary plan then available to company employees between the ages of 55 and 65 years. He attempted the job transfer but then elected early retirement because the lower salary of the new job would seriously reduce his anticipated pension payments. The employee’s contention that the temporary retirement program was a subterfuge relied upon to eliminate him from his employment because of his age was not supported by probable cause and the complaint was properly dismissed. The early retirement was neither forced upon Forgensie nor specifically directed towards him. It was available, as are all retirement programs necessarily, only to older employees with long service, and several hundred of his coemployees also elected to take advantage of the option. (Review of order of appeal board vacating dismissal of complaint.) Present — Marsh, P. J., Cardamone, Simons, Mahoney and Goldman, JJ.  