Opinion
October 5, 1992
Adjudged that the determination is confirmed, with costs, and the proceeding is dismissed on the merits.
Substantial evidence was presented at the hearing to support the Commissioner's determination that the petitioner violated Public Health Law §§ 3304, 3331 (6); § 3332 (2) (d); (3); § 3338 (1); and § 3350. Although the Administrative Law Judge who presided at the hearing reached a different conclusion on most of the violations charged, the Commissioner was not bound by his recommendations (see, Matter of Gross v Ambach, 71 N.Y.2d 859; Matter of Carangelo v Ambach, 130 A.D.2d 898; Matter of Fabulous Steak House v New York State Liq. Auth., 186 A.D.2d 566 [decided herewith]).
The petitioner's assertion that the delay of approximately 4 1/2 years between the submission of the Administrative Law Judge's recommendations and the issuance of the respondent's decision resulted in substantial prejudice is without merit, since no evidence of actual injury was presented (see, Matter of Sarkisian Bros. v State Div. of Human Rights, 48 N.Y.2d 816; Matter of Major v Board of Regents, 160 A.D.2d 1041, 1044; Matter of Erdos v New York State Dept. of Educ., 105 A.D.2d 504; cf., Matter of Heller v Chu, 111 A.D.2d 1007).
Considering the degree of the petitioner's violation of controlled substances prescription procedure, we cannot say that the penalty imposed was "`shocking to one's sense of fairness'" (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233, quoting Matter of Stolz v Board of Regents, 4 A.D.2d 361, 364).
We have examined the petitioner's remaining contention and find it to be without merit. Thompson, J.P., Sullivan, Balletta and Lawrence, JJ., concur.