Goodwill Advertising Co. v. State Liquor Authority

• Decision Date: 18 July 1962
• Citation: 244 N.Y.S.2d 322,40 Misc.2d 886
• Parties: GOODWILL ADVERTISING COMPANY, Plaintiff, v. STATE LIQUOR AUTHORITY of the State of New York, Defendant. ; Special Term, Ulster County
• Court: New York Supreme Court

Page 322

244 N.Y.S.2d 322

40 Misc.2d 886

GOODWILL ADVERTISING COMPANY, Plaintiff, v. STATE LIQUOR AUTHORITY of the State of New York, Defendant.

Supreme Court, Albany County; Special Term, Ulster County.

July 18, 1962.

Keating & Brodkin, New York City (Albert H. Brodkin, New York City, of counsel), for plaintiff.

Hyman Amsel, Counsel of State Liquor Authority (Bartholomew A. Moynahan, New York City, of counsel), for defendant.

LAWRENCE H. COOKE, Justice.

In this action for a declaratory judgment and injunction, plaintiff moves for summary judgment.

Previously defendant moved to dismiss the complaint for legal insufficiency and the Appellate Division affirmed Special Term's denial of said motion (14 A.D.2d 658, 218 N.Y.S.2d 759). A partial factual summary is recited in the said appellate memorandum, viz.: 'Plaintiff, a Massachusetts corporation, is engaged in the business of licensing retail stores, including so-called supermarkets, to operate its 'goodwill award plan' under agreements specifying conditions for its use and the payment of a fee therefor by its licensees, six of which, it is alleged, are licensed by defendant to sell beer at retail for off-premises consumption pursuant to section 54 of the Alcoholic Beverage Control Law. The State Liquor Authority determined that the plan 'constitutes gambling within the intent and meaning of the Alcoholic Beverage Control Law and the Rules' of the Authority and that 'participation therein by the licensee would constitute cause for revocation, cancellation or suspension of the license involved.' It then notified plaintiff's licensees that it had received information indicating their violation of the law by suffering or permitting gambling on their premises and threatened the immediate institution of revocation proceedings unless the occurrence of the violation was acknowledged and a written agreement 'to cease and desist 'from this type of violation in the future'' was executed and returned to the Authority. Fearing that their beer licenses otherwise would be placed in jeopardy, several of the licensees then discontinued the use of the plan and terminated their contracts with plaintiff.' It also appears without dispute (see paragraph 'ELEVENTH' of affidavit of Martin C. Epstein submitted in opposition) that the goodwill award plan was conducted by placing signs outside of the supermarkets in question inviting the public to participate and stating that participation was free and that nothing need be purchased and that all participants should obtain a registration card, that said cards recited that 'participation in Goodwill is free but you must register, then qualify this card each week to be eligible to receive the current week's award', that to be eligible for an award a person must again call at the store premises and have his registration card punched for the current weekly award by a store attendant and that on an appointed night each week in the parking lot outside the premises a drawing was held from a drum and cash awards were made to such person whose number was drawn and who was present in the premises or on the parking lot, loud-speakers being employed to announce the winners to people in the premises or on the lot outside.

Summary judgment is applicable to actions for declaratory judgment and injunction as rule 113 of the Rules of Civil Practice now makes said remedy available to every party in any type of civil action without limitation, except that in matrimonial actions only the party against whom matrimonial relief is sought may move for summary disposition. See: Randolph v. Jacobs, 20 Misc.2d 310, 197 N.Y.S.2d 780; Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332. In applications such as this the decisive consideration is the existence of conflicting issues of fact (Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382). The court must search the proof, as proffered by affidavits or otherwise, to ascertain whether it discloses a real issue, a triable issue, rather than a formal, feigned, perfunctory or shadowy one and, if there be nothing in truth to be tried, summary judgment should be granted (Rubin v. Irving Trust Co., 305 N .Y. 288, 306, 113 N.E.2d 424, 432; Schillinger v. North Hills Realty Corporation, 15 A.D.2d 539, 222 N.Y.S.2d 972; Di Sabato v. Soffes, 9 A.D.2d 297, 300, 193 N.Y.S.2d 184, 188). If no issue of fact is presented and the record contains a sufficient showing of undisputed facts to permit the issues to be determined as a matter of law, summary judgment should be directed, as issues of law do not prevent summary judgment (Town of Harrison v. County of Westchester, 13 A.D.2d 708, 214 N.Y.S.2d 229; Coutts v. J. L. Kraft & Bros. Co., 119 Misc. 260, 196 N.Y.S. 135, affd. 206 App.Div. 625, 198 N.Y.S. 908). It has been held that, where a defendant in his answering affidavit to the motion for summary judgment requests summary judgment dismissing the complaint, as here, he impliedly concedes that there are no issues of fact (Safro v. Feldshuh, Sup., 200 N.Y.S.2d 480). Here, in this case, the parties are in essential agreement as to the facts and there is nothing in truth to be tried. The only real issues to be determined here are those of law.

One who, having knowledge of an existing valid contract between others, intentionally, knowingly, and without reasonable justification or excuse, induces one of the parties to the contract to breach it to the damage of the other party, is liable in an action to recover the damages suffered, the action being predicated on the intentional interference without justification with contractual rights with knowledge thereof, such interference constituting a legal wrong and, if damages result, a valid cause of action exists therefor (Hornstein v. Podwitz, 254 N.Y. 433, 448, 173 N.E. 674, 675, 84 A.L.R. 1; Gonzalez v. Kentucky Derby Co., 197 App.Div. 277, 189 N.Y.S. 783, affd. sub. nom. Gonzales v. Reichenthaler, 233 N.Y. 607, 135 N.E. 938; Dior v. Milton, 9 Misc.2d 425, 440, 155 N.Y.S.2d 443, 460, affd. 2 A.D.2d 878, 156 N.Y.S.2d 996; Morris v. Blume, Sup., 55 N.Y.S.2d 196, 199, affd. 269 App.Div. 832, 56 N.Y.S.2d 414; Cramer v. Travelers Ins. Co., 180 Misc. 464, 40 N.Y.S.2d 934, 937).

The fundamental question here is one of law as to whether the undisputed conduct of plaintiff and its licensees, the operators of the retail establishments in question, constituted gambling Defendant asserts that it has power to prescribe causes for revocation, cancellation or suspension of licenses other than violations of the Alcoholic Beverage Control Law (Matter of Lehama Restaurant v. O'Connell, 280 App.Div. 796, 113 N.Y.S.2d 338; Alcoholic Beverage Control Law, § 118) and points to subdivision 13 of rule 36 of the Rules of State Liquor Authority, McKinney's Consol .Laws, Book 3, Appendix which states: 'No person licensed to sell alcoholic beverages shall suffer or permit any gambling on the licensed premises'. (9 NYCRR 53.1[m].) But is the 'goodwill award plan' gambling?

The common law defined 'gaming' as a contract between two or more persons by which they agree to play by certain rules at cards, dice or other contrivance, and that one shall be the loser and the other the winner (People v. Fuerst, 13 Misc. 304, 306, 34 N.Y.S. 1115, Bouvier's Law Dictionary, Baldwin's Cent. Ed., p. 460). But here there is no loser because no valuable consideration is given by participants. Webster's New International Dictionary, Second Edition, defines 'gamble' as: '1. To play or game for money or other stake, as at cards, dice, horse racing, etc. 2. Hence: To stake money or any other thing of value upon an uncertain event; to hazard; wager.' Said Dictionary defines 'gambling' as: 'a Properly, the act of playing or gaming for stakes. b Loosely, the act of risking or staking anything on an uncertain event; wagering. In the strict sense of the term, gambling implies a playing or gaming, as at checkers, dice, cards, horse racing, cockfighting, or some other sport or contest, as well as a staking or risking of money to be lost or won on the issue.' The appropriate definition of a 'stake' is given in said work as: '6 To put at hazard upon the issue of competition, or upon a future contingency; to wager; venture; bet. To stake his life and property on the event of a war. Macauley.' Here, there has been no wagering, risking, betting, hazarding or staking of money or other thing of value by the participants. In Chicago Patent Corporation v. Genco, Inc., 7 Cir., 124 F.2d 725, it was held at pages 727-728: 'To gamble is to risk money or other possession upon an event, chance or contingency in the hope of realization of gain * * *.'

No statute or other authority has been submitted showing that the activity in question constitutes gambling or is illegal. In People v. Shafer, 160 Misc. 174, 289 N.Y.S. 649, affd. 273 N.Y. 475, 6 N.E.2d 410, which should be controlling here, people registered in a book in the lobby of a theatre in order to participate in a drawing of money donated by the theatre to the winners on the drawing, participation being free with no requirement for the purchase of an admission ticket, the lower court holding at page 176 of 160 Misc., at page 651 of 289 N.Y.S.: 'In my opinion either the payment of a valuable consideration or an agreement to pay for the chance must precede the drawing.' It is reasonable to assume that the Court of Appeals would not have held therein as it did if said 'bank night' plan was gambling under the State Constitution. In People v. Mail and Express Co., Sp.Sess., 179 N.Y.S. 640, affd. 192 App.Div. 903, 182 N.Y.S. 943, affd. 231 N.Y. 586, 132 N.E. 898, defendants were charged with violations of section 1370 of the Penal Law in that they had put into effect a scheme to distribute cards and had announced that they would distribute among the holders of such cards selected by chance certain sums of money, no price being paid or obligation being made to pay any...