Natapow v. Epstein

• Decision Date: 07 September 1962
• Citation: 35 Misc.2d 813,231 N.Y.S.2d 989
• Parties: Petition of Ruben NATAPOW, Paul Noeth, Lillian Blumenfield and Charles Schroeder for an Order under Article 78 of the Civil Practice Act, Petitioners, v. Martin C. EPSTEIN, Chairman, and Robert E. Doyle, John Hart, William H. Morgan and Benjamin H. Balcom and/or their duly designated or appointed successors in office, constituting the members of the State Liquor Authority of the State of New York, and Barney G. Medwin, Respondents.
• Court: New York Supreme Court

Page 989

231 N.Y.S.2d 989

35 Misc.2d 813

Petition of Ruben NATAPOW, Paul Noeth, Lillian Blumenfield

and Charles Schroeder for an Order under Article

78 of the Civil Practice Act, Petitioners, v. Martin C. EPSTEIN, Chairman, and Robert E. Doyle, John Hart, William H. Morgan and Benjamin H. Balcom and/or their duly

designated or appointed successors in office, constituting

the members of the State Liquor Authority of the State of

New York, and Barney G. Medwin, Respondents.

Supreme Court, Erie County.

Sept. 7, 1962.

Condon, Klocke, Ange, O'Donnell & O'Brien, Buffalo, for petitioners.

Hyman Amsel, New York City (Richard R. Jenczka, Asst. Counsel, Buffalo, of counsel), for respondents State Liquor Authority.

Phillips, Mahoney, Lytle, Yorkey & Letchworth, Buffalo, for respondent Barney G. Medwin.

MICHAEL CATALANO, Justice.

Petitioners proceed pursuant to Article 78 of the Civil Practice Act to 'review and correct the action of the State Liquor Authority of the State of New York approving the application of the respondent Barney G. Medwin for the transfer of his license for the sale of liquor for consumption off the premises from 115 Clinton Avenue, North to the Midtown Plaza in the City of Rochester, New York,' and to annul such action and staying the respondents.

Petitioners are licensed liquor store operators located at 66 Chestnut Street, 21 Clinton Avenue, 124 South Clinton Avenue and 94 James Street, Rochester, New York, respectively. They contend that such transfer by respondent Medwin would be highly competitive to their businesses, to their irreparable damage.

On April 6, 1962, an 'Investigative Interview' was conducted by Deputy Commissioner J. Vincent Serve, who, on May 17, 1962, submitted to respondent Authority a memorandum thereon. At a regularly held meeting of the Authority held on June 7, 1962, it determined that public convenience and advantage would be promoted by its said action.

The following facts are not disputed: That the acquisition of land by public authorities for construction of inter-urban highway systems forced the removal and relocation of upwards of 900 families in the area of 115 Clinton Avenue, North, Rochester, New York; that respondent Medwin spent $16,881.00 preparing his new location at 181 Tower Building, Broad Street, Rochester, New York, for his retail liquor and wine store; that respondent Medwin leased said premises, paying a first month's rent of $786.67 for the month of September, 1962; that the proposed location at 181 Tower Building on Broad Street is part of the multi-million dollar Midtown Plaza project in uptown Rochester, and in addition to tying in a large department store, a leading women's wear store, a hotel and numerous other smaller businesses, there is provided basement parking for 2,000 cars, and although there is a covered mall connecting all portions of the project with entrances to the places of business, nevertheless, the proposed liquor store will open directly on Board Street only; that respondent Medwin's gross sales before said 900 families were relocated were about $60,000 and last year they were reduced to $32,000.

The Legislature has declared it as the policy of this State to regulate and control the sale and distribution herein of alcoholic beverages by empowering the Liquor Authority to determine whether public convenience and advantage will be promoted by the location of licensed premises, subject to judicial review. (Alcoholic Beverage Control Law, § 2.) A liquor license may not be transferred to any other premises except in the Authority's discretion, (A.B.C.Law, § 111), which shall be exercised reasonably according to the record in each case. (Matter of Rockower v. State Liquor Authority, 4 N.Y.2d 128, 131, 173 N.Y.S.2d 5, 8, 149 N.E.2d 512, 513.) Since there is no inherent right in a citizen to engage in selling intoxicating liquors, the legal test of exercising this discretionary power is whether the Authority acted arbitrarily or capriciously. (Matter of Wager v. State Liquor Authority, 4 N.Y.2d 465, 468, 176 N.Y.S.2d 311, 312, 151 N.E.2d 869, 870.) The transfer of a liquor license to any other premises may be reviewed by the Supreme Court. (A.B.C.Law, § 121, subd. 6.)

Generally, unless one's individual right is invaded, he may not, as a champion of the community, oblige public officers to defend their official acts in courts of justice. (Doolittle v. Supervisors of Broome County, 18 N.Y. 155, 163.) The courts may not supervise the official acts of other governmental...