
    In the Matter of Ernest H. Scott, Petitioner, against Joseph P. Kelly, as Commissioner of Motor Vehicles of the State of New York, Respondent.
   This is a proceeding brought pursuant to article 78 of the Civil Practice Act to review the determination made by the Commissioner of Motor Vehicles revoking petitioner’s license upon the ground that he was guilty of reckless driving. On May 3, 1957, at about 10 o’clock at night petitioner was involved in an accident about 10 miles east of Hancock, New York, on a sharp curve located on what is known as Hawk Mountain. His ear went off the pavement and struck guardrails. He testified that “I fell asleep, I guess”. It was further developed in the testimony that he noticed that he felt sleepy after he left Hancock. There was evidence from which the determination could have been made that the accident in which the petitioner’s car left the road and struck the guardrails was causally related to his drowsy condition and that he realized he was becoming drowsy at a point some 10 miles distant from the scene of the accident. Although the evidence was not entirely satisfactory, it was sufficient to base an administrative determination that petitioner had operated his motor vehicle “in a manner showing a reckless disregard for life or property of others ” (Vehicle and Traffic Law, § 71, subd. 3, par. [e]). However, we are annulling the determination and remitting because of the statement of the referee that he had no choice but to revoke petitioner’s license. Reckless driving, the violation for which the license was revoked, is a ground for permissive revocation or suspension under subdivision 3 (par. [a]) of section 71 of the Vehicle and Traffic Law. Mandatory license revocations are dealt with under subdivision 2 of section 71. The respondent should exercise his discretion after reconsidering the facts of this case whether to suspend petitioner’s license for a reasonable period or to revoke it. Determination annulled and proceeding remitted for further proceedings. Bergan, J. P., Gibson, Herlihy and Reynolds, JJ., concur.  