
    In the Matter of Carl A. Vergari, as District Attorney of Westchester County, Respondent, v Michael Hirniak, Appellant.
   In a proceeding to declare a forfeiture pursuant to section 3388 of the Public Health Law, the appeal is from so much of an order of the Supreme Court, Westchester County, entered September 28, 1976, as denied respondent-appellant’s motion for summary judgment. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion granted to the extent that respondent-appellant is awarded summary judgment dismissing the forfeiture proceeding; and proceeding remanded to Special Term for a determination of respondent-appellant’s counterclaims. The institution of the forfeiture proceeding by the District Attorney was not timely pursuant to the provisions of subdivision 4 of section 3388 of the Public Health Law. Martuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.  