Village of Pleasantville v. Lisa's Cocktail Lounge, Inc.

• Decision Date: 12 November 1973
• Citation: 349 N.Y.S.2d 333,43 A.D.2d 572
• Parties: In the Matter of VILLAGE OF PLEASANTVILLE, Respondent, v. LISA'S COCKTAIL LOUNGE, INC., Respondent, and State Liquor Authority and Westchester County Alcoholic Beverage Control Board, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 333

349 N.Y.S.2d 333

43 A.D.2d 572

In the Matter of VILLAGE OF PLEASANTVILLE, Respondent, v. LISA'S COCKTAIL LOUNGE, INC., Respondent, and State Liquor

Authority and Westchester County Alcoholic

Beverage Control Board, Appellants.

Supreme Court of New York, Appellate Division,

Second Department.

Nov. 12, 1973.

In this proceeding under section 123 of the Alcoholic Beverage Control Law (a) to annul the State Liquor Authority's approval of an application by Lisa's Cocktail Lounge, Inc. for a tavern liquor license and (b) to direct remission of the matter to the Authority for a new hearing at which petitioner will be authorized to present testimony, the Authority and the Westchester County Alcoholic Beverage Control Board appealed from a judgment of the Supreme Court, Westchester County, dated April 25, 1972, which granted the petition to the extent of (1) remitting the matter to the Authority for a new hearing and (2) directing that petitioner shall be permitted full intervention and participation, including certain specified rights, at the new hearing. This court, by a previous decision on this appeal, affirmed the judgment, but the Court of Appeals reversed and remitted the proceeding to this court 'to take such action as may be appropriate, in accordance with the accompanying memorandum' of that court (Matter of Vil. of Pleasantville v. Lisa's Cocktail Lounge, 40 A.D.2d 679, 336 N.Y.S.2d 174, revd. 33 N.Y.2d 618, 347 N.Y.S.2d 578, 301 N.E.2d 548). The memorandum of the Court of Appeals stated, Inter alia:

'Thus, while it may have been preferable to allow the village to participate fully in the hearing, the agency had discretion to limit the village participation as it did.

'Ordinarily, proceedings are brought under section 123 to review whether there is insufficient basis for the Authority grant of a liquor license. The Appellate Division, in remitting the matter to the Authority for a new hearing, did not determine whether there was a proper basis for the grant of a license. Section 123, however, is broad enough to permit the grant of a license to be challenged for any alleged illegality. In the instant case, the sole illegality alleged in the petition was the failure to permit the village full participation at the Authority hearing. It was not alleged that the grant of a license was arbitrary or that on the hearing there was an insufficient record. Having determined that the Authority was not required to permit the village full...