Opinion
Argued January 10, 1980
Decided February 7, 1980
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
N. Theodore Summer and James S. Gleason for appellant.
Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), for respondent.
MEMORANDUM.
The appeal as of right in this article 78 proceeding should be dismissed for want of a substantial constitutional question, but on the court's own motion appellant should be granted leave to appeal. In view of our reversal and dismissal of the indictment for the predicate felony in People v Yannett ( 49 N.Y.2d 296, decided herewith), the judgment confirming respondents' determination should be reversed, with costs, and the determination made under subdivision 5 of section 2806 of the Public Health Law annulled. That disposition is, however, without prejudice to such further disciplinary proceeding, if any, as respondents may be advised to bring on the basis of the underlying facts.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Appeal taken as of right dismissed, without costs. On the court's own motion, leave to appeal granted to petitioner. Judgment reversed, without costs, and respondents' determination annulled.