
    In the Matter of Robert S. Tyson, Jr., Petitioner, against James R. Macduff, as Commissioner of Motor Vehicles of the State of New York, Respondent.
   Proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles suspending petitioner's chauffeur’s license for sixty days for an alleged violation of paragraph (e) of subdivision 3 of section 71 of the Vehicle and Traffic Law. Determination annulled on the law, without costs. Petitioner’s license was suspended because he was involved in a collision with a light pole when he fell asleep while driving his automobile. There is no proof that petitioner had any previous warning of drowsiness. Under such circumstances, a finding of gross negligence or reckless disregard for life or property of others was not justified (Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N. Y. 639; Matter of Crawford v. Fletcher, 278 App. Div. 1017; Matter of Noveslcy v. Macduff, 280 App. Div. 953), and the evidence is entirely insufficient to sustain respondent’s finding that petitioner “was not in physical condition to drive.” Nolan, P. J., MacCrate, Schmidt, Murphy and Ughetta, JJ., concur.  