
    In the Matter of Andrew Ferguson, Petitioner, against Joseph P. Kelly, as Commissioner of Motor Vehicles of the State of New York, Respondent.
   This is a proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles which suspended the petitioner’s operator’s license under section 71 (subd. 3, par. [e]) of the Vehicle and Traffic Law. The petitioner, whose wife and baby were in the ear with him, was parked in a gas station on the west side of Route 32. He drove out of tire gas station in an easterly direction across Route 32 intending to enter a driveway on the opposite side of the road. As his car entered the driveway it was struck in the right rear door by a vehicle being operated in a northerly direction on Route 32. The petitioner testified that he stopped as he was leaving the gas station, looked both ways, could see for 150 feet, but did not see the other vehicle approaching. He stated that before the collision he saw the vehicle about 40 feet away. The driver of the other vehicle testified that he did not see the petitioner’s ear until just before the collision. The petitioner, as the Attorney-General contends, may have been guilty of a violation of section 1143 of the Vehicle and Traffic Law for failing to yield the right of way. However, while the failure to see the approaching ear and to yield the right of way may have constituted ordinary negligence the petitioner’s actions did not evince that disregard of the consequences thereof or that indifference to the rights of others which separates gross negligence from ordinary negligence in both quality and degree. In our view there is a lack of substantial evidence in this record to support the determination of the Commissioner. Determination annulled, with costs to the petitioner. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, J J., concur.  