
    In the Matter of Theodore D. Harris, Petitioner, against Joseph P. Kelly, as Commissioner of the Bureau of Motor Vehicles of the State of New York, Respondent.
   Proceeding pursuant to article 78 of the Civil Practice Act, transferred to this court pursuant to section 1296 of the Civil Practice Act, to review a determination of respondent suspending, for 30 days, the operator’s license of the petitioner for violation of paragraph (e) of subdivision 3 of section 71 of the Vehicle and Traffic Law. Determination annulled, with $10 costs and disbursements. In our opinion, there was no substantial evidence to support the finding that the petitioner was guilty of gross negligence. (Cf. Matter of Knoepffler v. Kelly, 2 A D 2d 851.) Matter of Athenas v. Macduff (286 App. Div. 869, affd. 309 N. Y. 816), relied on by respondent, is inapplicable. There was no finding by the Referee that the petitioner entered the intersection where the accident occurred while the traffic light was red against him, nor is there sufficient evidence that, if he did so, his disregard of his statutory duty was intentional, as the proof established in the cited case. Neither was there substantial evidence that petitioner entered the intersection at an excessive rate of speed, or even at a speed of approximately 25 to 30 miles an hour, as the Referee found. We do not consider testimony by a witness who observed petitioner’s motor vehicle for a fraction of a second before the accident, at most, a sufficient foundation for the finding made. Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.  