Proceeding pursuant to CPLR article 78 to review so much of a determination of the respondent Commissioner of the White Plains Department of Building, dated March 16, 1979, as, after a hearing, found petitioner guilty of having thrice failed to comply with a directive of the commissioner (charge one, specifications one through three), and imposed the punishment of demotion. By order dated March 3,1980, this court remitted the proceeding to Special Term to hearing and report, inter alia, on whether petitioner’s constitutionally protected conduct was a motivating factor in the commissioner’s decision to bring the charges. The determination of the proceeding has been held in abeyance in the interim (Matter of O’Reilly v Pisani, 74 AD2d 830). Special Term has complied and rendered a report in accordance therewith. Determination confirmed insofar as reviewed and proceeding dismissed on the merits, without costs or disbursements. Although petitioner met his burden of showing that his conduct was constitutionally protected and was a motivating factor in the commissioner’s decision to bring the charges when he did, the commissioner in turn showed by a preponderance of the evidence that he would have preferred the charges and reached the same determination in the absence of the protected conduct. Accordingly, since the determination insofar as reviewed was supported by substantial evidence, we confirm. Damiani, J. P., Titone, Cohalan and O’Connor, JJ., concur.