Utica Cheese, Inc. v. Barber
Decision Date | 06 May 1980 |
Citation | 406 N.E.2d 1342,429 N.Y.S.2d 405,49 N.Y.2d 1028 |
Parties | , 406 N.E.2d 1342 In the Matter of UTICA CHEESE, INC., Respondent, v. J. Roger BARBER, as Commissioner of the New York Department of Agriculture and Markets, et al., Appellants. |
Court | New York Court of Appeals Court of Appeals |
In this article 78 proceeding petitioner seeks to compel the Commissioner of the Department of Agriculture and Markets to act on its milk dealer license application, which has now been pending for some 16 months. Under subdivision 1 of section 301 of the State Administrative Procedure Act, the commissioner is required to reach his decision "within reasonable time" (see, also, State Administrative Procedure Act, § 102, subd. 3). Though the statute does not define this period with specificity, we would have to deem it elapsed in this case save for the commissioner's advice as to the unusual nature of the matters he has been compelled to investigate in aid of his ultimate determination. But, as appears from the pertinent facts and circumstances revealed in the record in this proceeding and fairly summarized in the memorandum at the Appellate Division, the commissioner is unable to provide a better estimate of when, if ever, he will be able to ascertain the relevance and availability of the further information he seeks other than that it will be at some unknown time in the future. Fairness to the applicant therefore requires that a hearing be held and a determination rendered promptly. To that end, the order of the Appellate Division, 73 A.D.2d 726, 422 N.Y.S.2d 501, is modified to direct that these steps be accomplished no later than 90 days from the date of this decision and, as so modified, affirmed, with costs.
Order modified, with costs to petitioner, in accordance with the memorandum herein and, as so modified, affirmed.
To continue reading
Request your trial-
Weber v. The N.Y. State Educ. Dep't
...perform certain functions, they are entitled to orders directing defendants to discharge those duties"]; Matter of Utica Cheese v Barber, 49 N.Y.2d 1028, 1030 [1980] [although statute did not define the "reasonable time" within which agency had to render its decision on the petitioner's lic......
-
Weber v. New York State Education Department
...certain functions, they are entitled to orders directing defendants to discharge those duties"]; Matter of Utica Cheese, Inc. v. Barber , 49 N.Y.2d 1028, 1030, 429 N.Y.S.2d 405, 406 N.E.2d 1342 [1980] [although statute did not define the "reasonable time" within which agency had to render i......
-
Cortlandt Nursing Home v. Axelrod
...from performing an audit pursuant to this section." (See also, former 10 NYCRR § 86.8.)5 Compare Matter of Utica Cheese v. Barber, 49 N.Y.2d 1028, 429 N.Y.S.2d 405, 406 N.E.2d 1342, wherein the administrative delay of the Commissioner of the Department of Agriculture and Markets, in acting ......
-
Flosar Realty LLC v. N.Y.C. Hous. Auth.
...certain functions, they are entitled to orders directing defendants to discharge those duties”]; Matter of Utica Cheese v. Barber, 49 N.Y.2d 1028, 1030, 429 N.Y.S.2d 405, 406 N.E.2d 1342 [1980] [although statute did not define the “reasonable time” within which agency had to render its deci......
-
The Permit Application and Review Process
...application pending more than seven years characterized as extensive, unwarranted, and prejudicial); Utica Cheese, Inc. v. Barber, 406 N.E.2d 1342 (N.Y. 1980), appeal denied, 427 N.E.2d 513 (1981) (the burden of proof is upon the applicant to demonstrate by a preponderance of the evidence t......