dissents in a memorandum as follows: I dissent and would grant the petition to the extent of annulling the finding that on May 31, 1980, and again on June 4,1980, at a time when its license was suspended, petitioner engaged in the business of operating a driving school in violation of subdivision 2 of section 394 of the Vehicle and Traffic Law and the finding that petitioner violated regulation 76.8 (a) (2) of the Commissioner of Motor Vehicles (15 NYCRR) by failing to enter into its cash book payments for driving lessons given to Ruth Gobin on May 31 and June 4, 1980.
The only evidence before the hearing officer in support of these charges was a photostat copy of a hearsay affidavit of Ruth Gobin that she received driving lessons from petitioner on those days, for which she made payment by check, purported photostats of those checks, and the hearsay testimony by Inspector Screeney as to a conversation he had with Ruth Gobin. Ruth Gobin was not produced at the hearing and this evidence was received over the objection of petitioner’s attorney. We have said on numerous prior occasions that “[wjhile adherence to technical rules of evidence is not required in administrative hearings (State Administrative Procedure Act, § 306, subd 1), ‘it has been recognized that, under certain circumstances, the receipt of hearsay evidence might be so prejudicial as to have a tendency to deprive a party of a fair hearing’ (Matter of Strain v Sarafan, 57 AD2d 525; see, also, Matter of Brown v Murphy, 43 AD2d 524)”. (Matter of Riverton Funeral Home v Whalen, 63 AD2d 887, 888.)
The statement of Ruth Gobin taken ex parte by the investigator, although in the form of an affidavit, was mere hearsay and “[ajs hearsay, such statement * * * standing alone, lack[ed] competency and sufficient probative force to sustain material findings or a determination required to be supported by substantial evidence.” (Matter of Erdman v Ingraham, 28 AD2d 5, 7, and cases cited therein.) Of the eight charges preferred against petitioner, only four were sustained; the two referred to above and a charged violation of subdivision 2 of section 394 of the Vehicle and Traffic Law, arising from the operation of the driving school on May 27, while under suspension, and the failure to produce course completion certificates on July 9, 1980 in violation of regulation 7.8 (c). Petitioner was fined a total of $300 and its license was revoked. Under the circumstances, and in view of the fact that two of the four charges that were sustained are not based on substantial evidence, the matter should be remanded to the Commissioner of Motor Vehicles for reconsideration of the penalty imposed.