Joe's Pier 52 Seafood Corporation v. Hostetter

• Decision Date: 22 January 1970
• Citation: 26 N.Y.2d 746,309 N.Y.S.2d 46
• Parties: , 257 N.E.2d 292 In the Matter of JOE'S PIER 52 SEAFOOD CORPORATION, Respondent, v. Donald S. HOSTETTER, as Chairman et al., as Commissioners, constituting the New York State Liquor Authority, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 46

309 N.Y.S.2d 46

26 N.Y.2d 746, 257 N.E.2d 292

In the Matter of JOE'S PIER 52 SEAFOOD CORPORATION, Respondent, v. Donald S. HOSTETTER, as Chairman et al., as Commissioners, constituting the New York State Liquor Authority, Appellants.

Court of Appeals of New York.

Jan. 22, 1970.

Appeal from Supreme Court, Appellate Division, First Department, 32 A.D.2d 763, 301 N.Y.S.2d 214.

Millard & Greene and Sweet, Reinitz, Peskin & Sweet, New York City (Myron J., greene, Irving Sweet, Lester Peskin, Howard R. Udell, New York City, of counsel), for petitioner-respondent.

Eli Ratner, New York City (Benjamin Laskin, New York City, of counsel), for respondents-appellants.

Petitioner brought an Article 78 proceeding against the Commissioners of the New York State Liquor Authority to review the determination of the Authority directing the cancellation of the petitioner's restaurant liquor license, on ground that petitioner allegedly violated the Alcoholic Beverage Control Law, Consol.Laws, c. 3--B, in that it altered licensed premises without permission of the Authority and concealed or suppressed the true extent and cost of the alteration.

The Appellate Division modified the determination of the Authority in the exercise of discretion to extent of reducing the penalty to the issuance of a letter of warning and, as so modified, confirmed the determination. There was substantial evidence to uphold determination of a technical violation. The Authority did not wish a remand to ascertain source of funds used for alterations. The penalty imposed was excessive.

The Authority appealed to the Court of Appeals, contending that modification consisting of reduction of penalty to letter of warning was abuse of judicial discretion, as a matter of law. The Authority contended in the Court of Appeals that acts of petitioner constituted, at most, as found by the Appellate Division, a technical violation, and that reduction by Appellate Division of penalty imposed by Authority from cancellation to letter of warning was, on facts, a proper exercise of discretion and did not constitute an abuse of additional discretion as a matter of law.

Order affirmed, with costs.

All concur.