The opinion
*862 OPINION OF THE COURT
Order reversed, with costs, and the penalty fixed by the referee reinstated for reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (71 AD2d, at p 965), to which we add only that as in Kurcsics v Merchants Mut. Ins. Co. ( 49 NY2d 451, 459 ) so here the issue is one of legislative intent rather than administrative expertise.
Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.