William H. Van Vleck, Inc. v. Klein

• Decision Date: 16 June 1966
• Citation: 50 Misc.2d 622,271 N.Y.S.2d 64
• Parties: Application of WILLIAM H. VAN VLECK INC., Petitioner, v. Julius KLEIN, Herman Gilbert, State Liquor Authority and New York City Alcoholic Beverage Control Board, Respondents.
• Court: New York Supreme Court

Page 64

271 N.Y.S.2d 64

50 Misc.2d 622

Application of WILLIAM H. VAN VLECK INC., Petitioner, v. Julius KLEIN, Herman Gilbert, State Liquor Authority and New York City Alcoholic Beverage Control Board, Respondents.

Supreme Court, Special Term, Kings County, Part I.

June 16, 1966.

Monroe I. Katcher, II, New York City, for petitioner.

Sharf, Mackell & Hellenbrand, Kew Gardens, for respondents Klein and Gilbert.

Hyman Amsel, New York City, for respondents State Liquor Authority and New York City ABC Board.

MEMORANDUM

MURRAY T. FEIDEN, J.

This is an application for leave to reargue the dismissal of a petition brought pursuant to section 123 of the Alcoholic Beverage Control Law (49 Misc.2d 240, 267 N.Y.S.2d 229). The application can be more accurately characterized as one for leave to renew.

At the outset it is necessary to dispose of the respondents' objections that the application is not timely made because more than three months have elapsed since the order of the court was entered on its original decision and that the petitioner should pursue its appeal according to its notice of appeal served April 1, 1966. Generally speaking, reargument will not be allowed after the time to appeal from the original order has expired and there has been a failure to file a notice of appeal within the required time. (N.Y. Central R. Co. v. Beacon Milling Co., 184 Misc. 187, 53 N.Y.S.2d 405.) The rationale for this rule is that a motion for reargument cannot be used to circumvent the statute prescribing the time within which an appeal must be taken. (People v. Dellamura, Co.Ct., 28 N.Y.S.2d 584 (N.O.R.); A. Klipstein & Co. v. Marchmedt, 39 Misc. 794, 81 N.Y.S. 317.)

Here, however, a notice of appeal has been duly filed so that it cannot be said that the petitioner seeks to circumvent the law. Nor does the fact that the applicant has filed a notice of appeal from the original determination present any obstacle to a motion for reargument (Matter of Friedman, 123 Misc. 809, 206 N.Y.S. 410, reversed on other grounds, 215 App.Div. 130, 213 N.Y.S. 369). All that is required is that the motion be made promptly and in any event within a reasonable time after the original determination. (People v. Fay, 183 Misc. 708, 50 N.Y.S.2d 624.) Whether this application be deemed a motion for leave to reargue or to renew or both, the court finds that under the circumstances the application has been made within a reasonable time.

The basis for the application is that this court, in making its determination, relied on the decisional law then in effect but that Matter of Forman v. New York State Liquor Authority, 25 A.D.2d 563, 267 N.Y.S.2d 1019, reversed by the Court of Appeals, 17 N.Y.2d 224, 270 N.Y.S.2d 401, 217 N.E.2d 129 (N.Y.L.J. 5/3/66, p. 16, col. 5, full opinion on front page N.Y.L.J. June 16, 1966), has set forth guidelines which should be considered by this court. In making its original determination (49 Misc.2d 240, 267 N.Y.S.2d 229) the court indicated its sympathy with the petitioner's position and its dissatisfaction with the hearing procedures adopted by the Authority but was constrained to hold as it did because of the aforementioned decisional law which did not provide any guidelines to aid the court.

The Court of Appeals in the Forman case has now set up guidelines and has imposed upon the Authority a requirement that it (p. 228, 270 N.Y.S.2d p. 402, 217 N.E.2d p. 130) '* * * develop a complete record as to the package store license application and to establish the basis for the Authority's conclusion that the grant of the license will promote 'public convenience and advantage" and (p. 229, 270 N.Y.S.2d pp. 403, 404, 217 N.E.2d p. 131) '* * * that the Authority when challenged in court, although it need not produce 'findings' of the conventional sort, must show forth a rational basis for its conclusion as to 'public convenience and advantage." It thus appears that the initial burden of setting forth the rationale behind the granting of the license rests with the Authority.

A re-examination of the answer and record, in the light of the foregoing guidelines, discloses that said answer and record (except for a hearing held by the Authority which will hereinafter be discussed in detail) approximate and are substantially similar to those in the Forman case. They contain the general and stereotyped digest sheets, reports of investigation, etc., which, according to the guidelines in the Forman case, fail to set forth a rational basis for the Authority's conclusion that the granting of the license will promote public convenience and advantage. If anything, the record in this case is weaker than that in the Forman case because here the Authority overruled the unanimous recommendations of the members of the local New York City Alcoholic Beverage Control Board which disapproved the issuance of a new license on the ground that it would not be in the interest of the public, whereas in the Forman case the local Board approved the application. There is a significant resemblance in both cases in that in the Forman case the distance between stores was 75 feet and in the instant case it is approximately 80 feet.

The respondent's chief resistance to the present application is based on the fact that there was no statutory hearing in the Forman case whereas such hearing was held and the record of same furnished to the court in the instant case and that said record contains material which goes beyond that found in the Forman case. Other than offering in evidence some routine documents, the so-called hearing consisted of the hearsay testimony and unsupported arguments and conclusions of two obviously biased witnesses, one of whom was the attorney for the landlord of the new licensee and the other the attorney for the new applicant. The general tenor of this hearing is demonstrated by the unchallenged characterization of the landlord's attorney as a disinterested witness. These attorneys then proceeded to testify that the petitioner's store employs approximately 11 salesmen, that it is overly busy, that service is slow and it is necessary to stand in line. No attempt was made to establish the accuracy thereof. Such information, if based upon an investigation by a disinterested agency or even the testimony of biased persons based upon personal observations, might have some relevancy. To characterize these proceedings as a 'hearing' is sheer sophistry. Although it might not be necessary to follow stringent rules of evidence at an administrative hearing so that hearsay evidence is not excluded, nevetheless certain safeguards are to be followed in giving effect to that type of evidence. Thus, it has long been the rule in this State that hearsay evidence alone is not sufficient upon which to base an administrative determination. There must be a residuum of legal evidence or evidence of some probative value to support such a determination. (Richardson on Evidence, 9th Ed., § 213--a, p. 205; Matter of Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 439, 440, 113 N.E. 507, 508; Matter of Altschuller v. Bressler, 289 N.Y. 463, 46 N.E.2d 886; Matter of Doca v. Federal Stevedoring Co., 308 N.Y. 44, 54, 123 N.E.2d 632, 637; Levins v. Bucholtz, 2 A.D.2d...