
    In the Matter of Fred Springer, Petitioner, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
   Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination issued by respondent which revoked petitioner’s operating certificate for the Rockaway Care Center and the Park Nursing Home, pursuant to section 2806 of the Public Health Law. This petitioner was previously before this court in regard to his conviction of a felony and its potential effect upon his privilege to possess operating certificates for the facilities pursuant to the Public Health Law. (See Matter of Springer v Whalen, 68 AD2d 1011, mot for lv to app den 47 NY2d 710.) Hearings were subsequently held and substantial evidence supports the finding that petitioner was convicted of a felony as specified in section 2806 (subd 5, par [a]) of the Public Health Law. Petitioner does not directly contend that the penalty is too harsh but rather relies upon the certificate of relief which argument the court previously considered and rejected (see Matter of Springer v Whalen, supra). As to the contention that the Commissioner of Health may not delegate the exercise of discretion as to penalty in this proceeding to his appointed Director of the Office of Health Systems Management, it was noted in the case of Matter of Yannett v Berman (65 AD2d 667, revd on other grounds 49 NY2d 750) that the determination of penalty was “the duty of the Department of Health”. Since section 2806 (subd 5, pars [a], [d]) of the Public Health Law does not specifically limit the determination of penalty solely to the discretion of the Commissioner of Health, his delegation and assignment of duties to the Director of the Office of Health Systems Management is encompassed within section 206 (subd 1, par [a]; subd 8) of the Public Health Law. Determination confirmed, and petition dismissed, without costs. Kane, J.P., Main, Mikoll, Yesawich, Jr., and Herlihy, JJ., concur.  