Walsh v. New York State Liquor Authority
| Decision Date | 10 May 1965 |
| Parties | Mary E. WALSH, etc., et al., individually and on behalf of other licensees similarly situated, Appellants-Respondents, v. The NEW YORK STATE LIQUOR AUTHORITY, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert W. Corcoran, Hicksville, for appellant-respondent; J. Daniel Mahoney, New York City, of counsel.
Louis J. Lefkowitz, atty. Gen., New York City, for respondent-appellant; Philip Weinberg, New York City, of counsel.
Before BELDOCK, P. J., and UGHETTA, CHRIST, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action for a declaratory judgment and to permanently enjoin the defendant State Liquor Authority from issuing any package store licenses pursuant to its Bulletin No. 390 and its Rule 17 on the ground that said bulletin and rule are arbitrary and capricious: (1) the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County, entered April 12, 1965 upon reargument, as denied their motion for an injunction pendente lite; and (2) the defendant cross appeals from so much of the order as vacated a prior order granting its motion to dismiss the complaint for patent insufficiency and in effect denied said motion and reinstated the complaint as sufficient.
Order, insofar as appealed from by the plaintiffs, affirmed without costs.
Order, insofar as appealed from by the defendant, reversed without costs; defendant's motion to dismiss the complaint granted, and complaint dismissed without costs, and without prejudice to the commencement of a new action as herein indicated, if plaintiffs be so advised.
Special Term initially dismissed the complaint on the ground that it could not be presumed that defendant would act illegally at some future time in approving applications for package store liquor licenses without determining whether the public convenience and advantage would be served. On plaintiffs' motion for reargument, they alleged that, after argument of the original motion, defendant had conditionally approved an application for a license. Special Term thereupon reinstated the complaint, holding that the complaint could now be deemed to be directed against an actual illegal act rather than against a hypothetical future illegal act. We do not agree.
As a matter of pleading, there is little difference between a conclusory allegation that defendant will do something illegal and an equally conclusory allegation that defendant has done...
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