Wallfor, Inc. v. Eaton
| Decision Date | 23 February 1987 |
| Parties | In the Matter of WALLFOR, INC., d/b/a Garyowens, Respondent, v. Edwin EATON, etc., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Samuel Unger, Corp. Counsel, Long Beach (Jean Veness, of counsel), for appellants.
J. Richard MacMurray, Long Beach, for respondent.
Before MANGANO, J.P., and BRACKEN, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 to review a determination of the Acting City Clerk of the City of Long Beach, dated July 20, 1984, which denied the petitioner's application for a mercantile license to operate its premises as a supper club in the City of Long Beach, the appeal is from an order of the Supreme Court, Nassau County (Berman, J., on the decision; Becker, J. on the order), dated January 2, 1985, which (1) annulled the Acting City Clerk's determination and remitted the matter to the City Clerk of the City of Long Beach for further proceedings in accordance with Long Beach Code § 14-115 and (2) denied the appellants' cross motion for a preliminary injunction.
ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, said application is referred to Justice Mangano, and leave to appeal is granted by Justice Mangano (CPLR 5701); and it is further,
ORDERED that the order is modified by (1) striking the first decretal paragraph and substituting therefor a provision confirming the determination of the Acting City Clerk of the City of Long Beach, dated July 20, 1984, and dismissing the proceeding on the merits, (2) adding, at the end of the second decretal paragraph the words "without prejudice", and (3) adding a third decretal paragraph providing that the appellants' counterclaims are severed from the instant proceeding. As so modified, the order is affirmed, without costs or disbursements.
The order appealed is not appealable as a matter of right (see, CPLR 5701). However, Justice Mangano has granted leave to appeal.
On June 6, 1984, the petitioner applied to the City Clerk of the City of Long Beach to change its mercantile license from one allowing the operation of a "restaurant bar & grill with stools" to one allowing the operation of a "supper club". A "supper club" is defined in Long Beach Code § 14-113 as:
"any restaurant, bar, tavern, inn, saloon or other place where food or liquor or other refreshment is sold or served, in which a part or place is provided or used for dancing by patrons, or in which entertainment is provided".
On July 19, 1984, the Building Commissioner of the City of Long Beach, recommended, inter alia, in an interoffice memorandum to the City Clerk, that the petitioner's application to amend its mercantile license from a restaurant to a supper club be denied on the ground that the premises, if licensed as a supper club, would not be, as then constituted, in compliance with numerous requirements of the New York State Uniform Fire Prevention and Building Code (19 NYCRR part 440) (hereinafter the Uniform Code), including the requirement of an automatic sprinkler system, and the City of Long Beach's "Fire Prevention Code".
Based on the recommendation of the Building Commissioner, the Acting City Clerk of the City of Long Beach denied the petitioner's application for a mercantile license to operate the subject premises as a supper club, by letter dated July 20, 1984.
The instant proceeding was commenced by the petitioner challenging the Acting City Clerk's determination.
In its memorandum decision, Special Term held that the City Clerk of the City of Long Beach could only deny the petitioner's application pursuant to the procedure outlined in Long Beach Code § 14-115. That section provides as follows:
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