The opinion
Sandler and Sullivan, JJ.,
dissent in a memorandum by Sandler, J., as follows: I am unable to agree with the court that there was not a rational basis for the determination of the State Division of Human Rights that there was no *834 probable cause to believe that the Bank of New York had discriminated against the petitioner on the basis of race, color or national origin. As in State Div. of Human Rights v New York State Drug Abuse Control Comm. ( 59 AD2d 332 ), a case in which the Appellate Division in the Fourth Department carefully limited precisely that principle in Mayo v Hopeman Lbr. & Mfg. Co. ( 33 AD2d 310 ), on which a majority of this court relies, “the records show that the investigations were extensive and that complainant had full opportunity to present his contentions and evidence, and they demonstrate that there was a rational basis for the commissioner’s determination of no probable cause.” (At p 337.) The picture that emerges from the extensive documents developed in the course of the investigation is quite clear. Petitioner is a conscientious, able, well-motivated individual whose abilities were recognized by steady promotions and attended by highly favorable evaluation reports. A time came when he was promoted to a position in which a difficulty in communicating in English became a matter of legitimate concern on the part of the responsible bank officials. As senior clerk, assigned to a night shift, it was his responsibility from time to time to communicate on the telephone with people not familiar with his speech patterns, with regard to matters that were sometimes of importance and sometimes of an emergency character. A particular event in which a supervisor was unable to understand petitioner on the telephone led to a concern about petitioner’s appropriateness in the particular position that he then occupied. It was recommended to the petitioner that he take advantage of English courses which the bank made available for its employees. He chose not to do so. Ultimately the conclusion was reached that petitioner was unsuitable in the position he occupied on the night shift and a variety of alternative positions were suggested to him, including a transfer in the same position to a day shift where the availability of alternative personnel would eliminate dependence on the petitioner’s ability to communicate on the telephone. He declined all alternative suggestions. A study of the record leaves no basis for doubting the bona fides of the responsible bank officials in the actions that they took. The undoubted fact that the petitioner could communicate adequately on a face-to-face basis with people who knew him in everyday matters does not refute the obviously legitimate concern felt as to his suitability for the particular position that he was then occupying. The statistical information provided by the bank with regard to the ethnic composition of the division in which petitioner worked, as well as the ethnic composition of those occupying positions similar to his, effectively refutes any suggestion of a discriminatory intent. Nor does it seem to me sensible to ignore the obvious reality that the determination to recommend against a probable cause hearing was made by an investigator who had pursued the investigation with obvious zeal and concern and who had the opportunity, not available either to the appeal board or ourselves, to hear petitioner at a conference.