
    In the Matter of Catherine C. McKenzie, Respondent, v Arnold R. Fisher, as Commissioner of Motor Vehicles, Appellant.
    Argued February 20, 1976;
    decided March 30, 1976
    
      
      Louis J. Lefkowitz, Attorney-General (Philip J. Fitzgerald and Jean M. Coon of counsel), for appellant.
    Substantial evidence warranted the determination that petitioner violated section 1154 of the Vehicle and Traffic Law. (Matter of Williams v Tofany, 43 AD2d 1005; Matter of Beadle v Tofany, 36 AD2d 985; Matter of Kilroy v Tofany, 33 AD2d 1092; Lo Giudice v Riedel, 32 AD2d 950; Matter of Breger v Macri, 34 NY2d 727.)
    
      Martin Meyer and Joseph R. Brennan for respondent.
    The commissioner’s finding of a violation of section 1154 of the Vehicle and Traffic Law and resulting suspension of petitioner’s operator’s license was arbitrary, capricious and unsupported by substantial evidence. (Matter of Kilroy v Tofany, 33 AD2d 1092.)
   Memorandum. The judgment of the Appellate Division should be reversed, with costs, and the determination of the Commissioner of Motor Vehicles suspending petitioner’s operator’s license for a period of 90 days reinstated.

In an article 78 proceeding to review the determination of the Commissioner of Motor Vehicles, made after a hearing, suspending or revoking an operator’s license pursuant to section 510 (subd 3, par [a]) of the Vehicle and Traffic Law, the reviewing court must confirm the determination if it is supported by substantial evidence. (CPLR 7803, subd 4; Matter of Donahue v Fletcher, 299 NY 227, 229, 230; Matter of Jenson v Fletcher, 277 App Div 454, 457, affd without opn 303 NY 639; Matter of Foster v Tofany, 31 AD2d 987.) The record in this case indicates that petitioner, driving along a straight, level and dry portion of Route 9 in the Town of Schroon in the early morning hours of June 24, 1973, struck and killed a hopelessly intoxicated pedestrian; that petitioner had consumed one beer and another alcoholic beverage shortly before this accident occurred; that she did not see the pedestrian in the roadway until she was 100 feet away (even though her automobile’s headlamps presumably could reveal an object 350 feet away if on the high beam setting and 200 feet away if on the low beam [Vehicle and Traffic Law, § 375, subd 3]); that petitioner, upon seeing the pedestrian in the roadway, did not reduce the speed of the vehicle or sound the horn in warning; that she first applied the brakes when, from a distance of only three car lengths, it appeared that the pedestrian was walking into petitioner’s driving lane; and that petitioner’s vehicle was traveling at a rate of 40 to 50 miles per hour when it struck the pedestrian. Upon this evidence we, therefore, conclude that the commissioner’s determination that petitioner failed to exercise due care to avoid a collision with a pedestrian, in violation of section 1154 of the Vehicle and Traffic Law is supported by substantial evidence.

Chief Judge Breitel and Judges Jasen, Jones, Fuchsberg and Cooke concur; Judges Gabrielli and Wachtler dissent and vote to affirm on the memorandum at the Appellate Division (47 AD2d 784).

Judgment reversed, with costs, and the determination of the Commissioner of Motor Vehicles reinstated in a memorandum.  