31 Fair empl.prac.cas. 1793, 32 Empl. Prac. Dec. P 33,846 Burroughs Corporation v. Werner H. Kramarsky, as Commissioner of the New York State Division of Human Rights

666 F.2d 27 31 Fair Empl.Prac.Cas. 1793 , 32 Empl. Prac. Dec. P 33,846 BURROUGHS CORPORATION, Plaintiff-Appellee, v. Werner H. KRAMARSKY, As Commissioner of the New York State Division of Human Rights, Defendants-Appellants.

No. 17, Docket 80-7127.

United States Court of Appeals, Second Circuit.

Originally Argued Sept. 25, 1980. Decided May 11, 1981. Petition for Rehearing filed June 9, 1981. Decided Nov. 24, 1981.

Ann Thacher Anderson, Gen. Counsel, State Division of Human Rights, New York City, for defendants-appellants.

William E. McKnight, Shelby D. Green, Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., for plaintiff-appellee.

Before MOORE and KEARSE, Circuit Judges, and TENNEY, District Judge. *

PER CURIAM:

1

For the reasons stated today in our opinion on rehearing in Delta Airlines, Inc. v. Kramarsky, 666 F.2d 21 , we vacate our original decision on this appeal, reported at 650 F.2d 1308 , holding that § 514(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144 (a) (1976), did not preempt New York's Human Rights Law, N.Y.Exec.Law § 296 (McKinney 1972 & Supp. 1980-1981).

2

The judgment of the district court enjoining enforcement of the Human Rights Law with respect to plaintiff's employee benefit plans is affirmed. For the reasons stated in our original opinion, plaintiff's claim under 42 U.S.C. § 1983 is remanded for such further consideration as may be appropriate.

* Honorable Charles H. Tenney, Senior Judge of the United States District Court for the Southern District of New York, sitting by designation