
    In the Matter of Jerome Miller, Petitioner, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
   Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Health of the State of New York, dated July 11, 1984, which, after a hearing, found petitioner, a doctor of podiatric medicine, guilty of three violations of Public Health Law article 33, and imposed a fine of $1,500.

Petition granted, on the law, to the extent of annulling that portion of the determination finding petitioner in violation of Public Health Law § 3331 (2) and vacating the penalty imposed in its entirety. Determination otherwise confirmed and proceeding dismissed on the merits, with costs to petitioner, and matter remitted to the respondent for imposition of a new penalty.

The determination of the Commissioner of Health that petitioner had violated Public Health Law § 3331 (2) in that petitioner had “obtained controlled substances with no intent to use them in his practice”, was not supported by substantial evidence (CPLR 7803 [4]; Matter of Pell v Board of Educ., 34 NY2d 222, 230). Accordingly, that portion of respondent’s determination must be annulled and the matter remitted to him for imposition of a new penalty upon the remainder of his determination, which we confirm. Lazer, J. P., Bracken, O’Connor and Brown, JJ., concur.  