Maine Sugar of Montezuma, Inc. v. Wickham

• Decision Date: 18 November 1971
• Parties: In the Matter of MAINE SUGAR OF MONTEZUMA, INC., Petitioner, v. Don WICKHAM, as Commissioner of Agriculture and Markets, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 858

325 N.Y.S.2d 858

37 A.D.2d 381

In the Matter of MAINE SUGAR OF MONTEZUMA, INC., Petitioner, v. Don WICKHAM, as Commissioner of Agriculture and Markets, Respondent.

Supreme Court, Appellate Division, Third Department.

Nov. 18, 1971.

Woods, Oviatt, Gilman, Sturman & Clarke, Rochester (Beryl Nusbaum, Rochester, of counsel), for petitioner.

Thomas G. Conway, Counsel, Dept. of Agriculture & Markets, Albany (Dennis P. Buckley, Albany, of counsel), for respondent.

Before STALEY, P.J., and GREENBLOTT, COOKE, SWEENEY and SIMONS, JJ.

GREENBLOTT, Justice.

This is a proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered January 21, 1971 in Albany County) to review a determination of the respondent Commissioner of Agriculture and Markets made on August 4, 1970 which revoked the Commission Merchant, Dealer, Net-Return Dealer or Broker License previously issued to the petitioner for the license year ending June 30, 1970.

During 1969, petitioner's predecessor, New York Sugar Industries, Inc., entered into numerous uniform contracts with farmers in the State of New York providing for the purchase of sugar beets. On May 13, 1970 the Commissioner of Agriculture and Markets issued a notice of hearing requiring petitioner to show cause why its license should not be revoked for a violation of subdivision 3 of section 246 of the Agriculture and Markets Law on the ground that it failed to make payment without reasonable cause for farm products it purchased. Hearings were held on May 25, 1970, June 16, 1970 and June 30, 1970. The license expired on June 30, 1970. On August 4, 1970, at which time no renewal of the license application was pending or was sought, respondent revoked petitioner's license on the ground that petitioner had no reasonable cause to fail to pay for beets delivered prior to December 1, 1969, on or before December 15, 1969. In his findings of fact the Commissioner had determined that the contract set up an absolute minimum payment of $14 a ton and required a payment of 75% Of that amount by December 15, 1969.

Petitioner first contends that the Commissioner's decision should be vacated since it was made after the license had already expired. This position is without merit. Respondent is charged with a continuing statutory responsibility 'to suppress unfair and fraudulent practices' in the sale of farm products and 'to safeguard the producers of this state in certain marketing transactions relative to such farm products' (Agriculture and Markets Law, § 244). It is important that respondent file an order either dismissing the proceeding or revoking the license (Agriculture and Markets Law, § 251--e) because the statute provides that respondent shall deny a new application for any person or corporation whose license has previously been revoked (Agriculture and Markets Law, § 251). Since the administrative action was timely commenced, it should not be rendered void because the final determination was made after the expiration of the license. (See Matter of Hacker v. State Liq. Auth., 19 N.Y.2d 177, 278 N.Y.S.2d 806, 225 N.E.2d 512; Matter of Brooklyn Audit Co. v. Department of Taxation & Finance, 275 N.Y. 284, 9 N.E.2d 930.)

Petitioner next contends that respondent's decision is not supported by substantial evidence in the record since respondent ignored the provisions of paragraphs 5 and 8 of the contract. It was petitioner's position: that under the contract any claims of nonpayment by the growers were premature; that the beets did not meet the contract standards; that petitioner was obligated only to make a payment of 75% Of the amount it, in its sole discretion, determined was due by December 15, 1969; that it had made such a payment; and that the balance was not due until October 31, 1970.

Paragraph 4 of the contract sets forth the standards which the beets had to meet in order to comply with the contract terms. It provides in part as follows:

'All beets delivered hereunder shall be normal, sound, and ripe beets topped below the leafline and having at least four per cent (4%) mark content from which cossettes are available with a mushportion (i.e., particles of less than 0.4 in. length) of not more than five per cent (5%) and from which a raw juice of a purity of at least eighty-five per cent (85%) and a thin juice of a purity of ninety per cent (90%) can be produced.'

The chief chemist and plant manager of petitioner testified that the test results were as follows: mark content 3.97%; mush-portion 7.96%; raw juice 86.00%; and thin juice 87.88%. He conceded that the tests were not separately performed upon the beets delivered by New York State growers, but that all of the tests were run on the commingled mass of beets that passed through the plant at Easton, Maine. This commingled mass of beets included beets received from growers in Pennsylvania, New Jersey, Maine or New York. All of the beets thus lost their identity. Since there were no separate tests of the beets delivered by the New York growers under the contracts, petitioner's claim that the beets did not meet the contract standards must fail. Nowhere in paragraph 4 is there language providing that the...