Pomeroy v. Whalen

Proceeding pursuant to CPLR article 78 (transferred to this [897] court by order of the Supreme Court at Special Term, entered in Franklin County), to review a determination of the Commissioner of Health. Respondents determined that petitioner was guilty of seven violations of the Public Health Law and one violation of the State Sanitary Code. In Matter of Pomeroy v Whalen (58 AD2d 21), we modified that determination by annulling the portions which found violations of the Public Health Law. Subsequently, however, the Court of Appeals reversed our judgment, insofar as appealed from, on the ground that the statute on which six of those violations were based was not unconstitutionally vague and remitted the matter to us "to determine whether there is substantial evidence to sustain the commissioner’s determination that the petitioner violated sections 1115 and 1116 of the Public Health Law by the sale of six residential lots from an unapproved portion of her realty subdivision” (44 NY2d 992, 995). On this further review, we find that the record contains such evidence supporting the commissioner’s determination as to those violations. Determination modified, on the law, by annulling so much thereof as found a violation for failure to submit final water supply plans, assessed a $1,000 penalty therefor and directed certain affirmative action to be taken, and, as so modified, confirmed, without costs. Mahoney, P. J., Greenblott, Kane, Main and Herlihy, JJ., concur.