State Division of Human Rights v. McHarris Gift Center

71 A.D.2d 813, 419 N.Y.S.2d 405, 1979 N.Y. App. Div. LEXIS 13041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1979
• Status: Published

Opinion

Petition unanimously granted, without costs, order reversed and complaint dismissed. Memorandum: In this proceeding pursuant to section 298 of the Executive Law, petitioner, a gift shop, seeks to annul an order of the State Human Rights Appeal Board reversing the action of the State Division of Human Rights in dismissing the complaint for lack of jurisdiction. The complainant alleges that he was denied "equal advantages, facilities, privileges and accommodations” of the gift shop because it displayed for sale novelties which demeaned persons of Polish extraction. The petition should be granted and the complaint dismissed. The novelty items, although offensive and in poor taste, were not communications “to the effect that any of the accommodations, advantages, facilities and privileges * * * [of the gift shop] shall be refused, withheld from or denied to any person on account of * * * national origin [or that that person] is unwelcome, objectionable or not acceptable, desired or solicited” as required by subdivision 2 of section 296 of the Executive Law. (Cf. Matter of Rosenberg v State Human Rights Appeal Bd., 45 AD2d 929.) (Proceeding pursuant to Executive Law, § 298.) Present—Cardamone, J. P., Simons, Hancock, Jr., Callahan and Witmer, JJ.