The opinion
Determination of the State Human Rights Appeal Board, dated May 29, 1981, which upheld the order and determination of the State Division of Human Rights, dated February 6,1980, annulled and the matter remanded to the State Division of Human Rights for a hearing thereon, without costs. In his complaint to respondent State Division of Human Rights, petitioner Camilo Sayers alleged that his demotion to the position of truck driver in September of 1977, which occurred after he had previously been twice promoted and also placed in training for senior clerk, was the result of discrimination based on his mixed heritage and Peruvian national origin. According to respondent Bank of New York, its action was warranted due to Sayers’ inability to communicate adequately in English. The State Division of Human Rights decided, following an investigation, that there was no probable cause to believe that the Bank of New York had discriminated against the petitioner on the basis of race, color, or national origin. This ruling was upheld by an evenly divided vote (2 to 2) on the appeal board. However, the record does not indicate that the petitioner, despite his accented English, had difficulty either in making himself understood or in comprehending others. In fact, for the six years prior to the advent of respondent Michael Gilsenan as head of the mail and messengers department in June of 1976, there had been no complaints about petitioner’s communications skill, and his job performance had been found to be uniformly exceptional. Since the record does not permit a conclusion that the complaint lacks merit as a matter of law, the dismissal of Sayers’ complaint, and the failure to grant him a hearing pursuant to section 297 of the Executive Law, was arbitrary and capricious. (Mayo v Hopeman Lbr. & Mfg. Co., 33 AD2d 310 ; see, also, State Div. of Human Rights v Blanchette, 73 AD2d 820 .) Concur — Markewich, Fein and Milonas, JJ.