
    In the Matter of Patricia Miller, Petitioner, v Barbara A. DeBuono, as Commissioner of Health of the State of New York, et al., Respondents.
    [669 NYS2d 926]
   —Hybrid proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of Health of the State of New York, dated December 2, 1994, which reversed a decision of an Administrative Law Judge made after a hearing, sustained a charge of patient abuse against the petitioner, and, inter alia, imposed a penalty pursuant to 10 NYCRR 415.4 (b) (1) (ii) (b), and an action, inter alia, for a judgment declaring that Public Health Regulation 415.4 (b) (1) (ii) (b) (10 NYCRR 415.4 [b] [1] [ii] [b]) is unconstitutional as applied to the petitioner. By decision and order dated January 21, 1997, this Court granted the petition to the extent of annulling the penalty imposed pursuant to 10 NYCRR 415.4 (b) (1) (ii) (b), but otherwise confirmed the determination, dismissed the proceeding, and declared that the respondents improperly retroactively applied the provisions of 10 NYCRR 415.4 (b) (1) (ii) (b) and 42 CFR 483.13 (c) (1) (ii) (B) to the petitioner (Matter of Miller v DeBuono, 235 AD2d 480). By opinion and order dated December 4, 1997, the Court of Appeals modified the order of this Court, and remitted the matter to this Court with directions to remit the case to the respondent Commissioner of Health for further proceedings in accordance with its opinion (Matter of Miller v DeBuono, 90 NY2d 783).

Adjudged that the respondents did not improperly retroactively apply the provisions of 10 NYCRR 415.4 (b) (1) (ii) (b) and 42 CFR 483.13 (c) (1) (ii) (B) to the petitioner; and it is further,

Adjudged that the petition is granted to the extent that the matter is remitted to the respondent Commissioner of Health for a new determination as to whether, on the existing record, the allegation of patient abuse was substantiated by a fair preponderance of the evidence (see, Matter of Miller v DeBuono, 90 NY2d 783, 794, supra; Matter of Lee TT. v Dowling, 87 NY2d 699), the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, without costs or disbursements.

Rosenblatt, J. P., O’Brien, Thompson and Luciano, JJ., concur.  