
    In the Matter of Florian Yandel, Jr., Petitioner, v Robert P. Whalen, as Commissioner of Health of the State of New York, et al., Respondents.
   — Proceeding pursuant to CPLR article 78 to review a determination dated March 8, 1978, which found that petitioner had illegally transferred ownership and operation of the Ramapo General Hospital without approval of the Public Health Council, and fined him $1,000. Petition granted, determination annulled, on the law, with costs, and the charges against the petitioner are dismissed. At the hearing the officer presiding explicitly excluded the charge that the petitioner illegally transferred ownership of the Ramapo General Hospital to one not approved by the Public Health Council because petitioner had not received adequate notice of that charge. To rule on the issue after the hearing ended, as was done here, and conclude that it was properly before the hearing officer is a denial of due process (see Matter of Simpson v Wolansky, 38 NY2d 391, 396; see, also, Matter of Sowa v Looney, 23 NY2d 329, 333). As to the second charge, the record clearly indicates that" petitioner did not transfer operation of the hospital until after he had been instructed to do so by the Commissioner of Health, in compliance with an order of the Supreme Court, Rockland County. Lazer, J. P., Rabin, Shapiro and Margett, JJ., concur.  