Costello v. New York State Liquor Authority

• Decision Date: 10 January 1963
• Citation: 17 A.D.2d 547,236 N.Y.S.2d 453
• Parties: Application of Delmas A. COSTELLO d/b/a Hotel Costello, Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act, v. The NEW YORK STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 453

236 N.Y.S.2d 453

17 A.D.2d 547

Application of Delmas A. COSTELLO d/b/a Hotel Costello,

Petitioner, for an Order Pursuant to Article 78 of

the Civil Practice Act, v. The NEW YORK STATE LIQUOR AUTHORITY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 10, 1963.

Order of transfer granted September 22, 1962.

Buscaglia & Buscaglia, Buffalo, for appellant; Christy A. Buscaglia, Buffalo, of counsel.

Hyman Amsel, New York City, for respondent; Richard R. Jenczka, Buffalo, of counsel.

Before WILLIAMS, P. J., and BASTOW, HALPERN, McCLUSKY and HENRY, JJ.

PER CURIAM.

This is a proceeding under Article 78 of the Civil Practice Act to annul a determination of the New York State Liquor Authority which revoked petitioner's license and imposed other penalties.

The revocation proceeding was initiated by the service of a Notice of Hearing upon petitioner. The time and place of the hearing were stated, the charges recited, and the notice concluded with the statement that petitioner could be represented by counsel and produce evidence in his behalf. It added that failure to appear would cause a determination by default.

All of this was perfectly proper and regular on its face and in accordance with Rule 1(1) and Rule 2(10) of the Rules of the State Liquor Authority, McKinney's Consol.Laws, Book 3 Appendix. However, attached to and served with the Notice of Hearing was an additional paper which was entitled 'IMPORTANT'. It notified the petitioner, in equally large type directly beneath the word 'IMPORTANT', that he must appear in person or a default would be taken. It also stated that if he should enter a plea of 'Not Guilty', he would have a right to a hearing and that a date therefor would be arranged. Although the requirement that he must appear personally was in accord with said Rule 1(1), the format of the notice seemed to stress this unduly, probably for reasons which will become obvious. The statement then mentioned and, in effect, invited a plea of 'No Contest', which was followed by this language: 'By doing so you will receive a lesser penalty than if a trial were held and a finding of 'Guilty' made. However, once you plead 'Not Guilty' and a date is set for hearing, no further opportunity to obtain a lesser penalty will be given.' Finally, at the end of the notice, in much smaller type than the portion which stated that petitioner must appear in person, it is stated that he might be represented by counsel but need not bring any witnesses with him.

The paper designated 'IMPORTANT' and its contents violate every principle of judicial or quasi-judicial fair dealing and the preservation of individual rights. Its effect was to threaten that if the petitioner should assert his valued personal and private rights and privileges, and if the charges should be sustained, he would be penalized for such assertion. This is startling and alarming procedure, which cannot, and will not, be countenanced or accepted by this court. The protection of basic fundamental rights is, of course, highly important and necessary in an administrative proceeding of this nature as well as in a purely judicial proceeding. (Sorrentino v. State Liquor Authority, 10 N.Y.2d 143, 218 N.Y.S.2d 635, 176 N.E.2d 563; Hecht v. Monaghan, 307 N.Y. 461; Weekes v. O'Connell, 304 N.Y. 259, 107 N.E.2d 290; 245 Elmwood Avenue, Inc. v. New York State Liquor Authority, 14 A.D.2d 393, 222 N.Y.S.2d 117, affd. 11 N.Y.2d 980, 229 N.Y.S.2d 422, 183 N.E.2d 701; Hilton Hotels v. Epstein, 14 A.D.2d 399, 222 N.Y.S.2d 121, affd. 11 N.Y.2d 978, 229 N.Y.S.2d 422, 183 N.E.2d 700.)

Incidentally, and we say this only in passing because we are primarily concerned with the procedural aspects of this matter, we note what occurred in the so-called 'Pleading part'. After petitioner had appeared in person without counsel and had made a statement in answer to the charges, his license was revoked and the penal sum of his bond demanded. Thereafter his application for a renewal license was denied. These were substantially the maximum personal penalties that could be imposed. All of this, after petitioner had been promised in writing that he would receive a lesser penalty after a 'No Contest' plea than he would receive if a trial were held after a 'Not Guilty' plea.

Finally the petition contains an allegation that, after the petitioner had 'answered or explained all of the charges to the hearing commissioner', the commissioner told petitioner that he would receive fair treatment and 'If it was up to me I would dismiss the whole thing, but it is up to the Board to make a decision like this.' Petitioner contends that his plea of 'No Contest' was based upon this statement. After the hearing commissioner reported to the Authority, the Authority 'adopted the findings of...