Ordered that the appeal is dismissed, without costs or disbursements, and the judgment is vacated (see, Matter of Davidson v Scully, 116 A.D.2d 575); and it is further,
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
Upon our de novo review of the record, we find that there is substantial evidence in the record to support the determination that criminal activity occurred on the premises from which the petitioner car service was being operated. Moreover, since the penalty imposed was not "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness", the determination will not be disturbed (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233). Brown, J.P., Sullivan, Eiber and O'Brien, JJ., concur.