William H. Van Vleck, Inc. v. Klein

• Decision Date: 11 February 1966
• Citation: 267 N.Y.S.2d 229,49 Misc.2d 240
• Parties: Application of WILLIAM H. VAN VLECK, INC., Petitioner, v. Julius KLEIN et al., Respondents.
• Court: New York Supreme Court

Page 229

267 N.Y.S.2d 229

49 Misc.2d 240

Application of WILLIAM H. VAN VLECK, INC., Petitioner, v. Julius KLEIN et al., Respondents.

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

Feb. 11, 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.

MURRAY T. FEIDEN, Justice.

This is a proceeding pursuant to section 123 of the Alcoholic Beverage Control Law brought by petitioner to enjoin the retail sale of liquors and wines at 121 Montague Street, Brooklyn, N. Y., for off-premises consumption. The petitioner is the owner and holder of a retail liquor license at 116 Montague Street, almost directly across the street.

All of the respondents herein had previously moved to dismiss the petition before answering the same. Said motions were heard before another Justice who denied the motions in all respects, granted leave to the respondents to file their answers, and continued a stay against the issuance of a license to the respondents Klein and Gilbert until the determination of the proceeding on the merits. Subsequently the respondents filed their answers, to which was also attached the record of the State Liquor Authority and New York City Alcoholic Beverage Control Board (hereinafter referred to as the Authority), and the matter was noticed for a hearing on the merits.

By decision dated January 18, 1966, this court held that there should be a clarification of the issues of public convenience and advantage and any other relevant issue that may be presented by the taking of testimony pursuant to section 123 of the Alcoholic Beverage Control Law. The parties were directed to set this matter down for a hearing before this court for a disposition on the merits. Upon reconsideration, it appeared that no further testimony or hearing was necessary and that the clarification sought by this court could be and was obtained by further argument by the respective counsel. Both sides also submitted additional papers.

The present proceeding under section 123 of the Alcoholic Beverage Control Law must be distinguished from one brought under Article 78 CPLR. Although petitioner could have brought an Article 78 proceeding, it chose not to do so. A section 123 proceeding opens up for review the simple issue of whether any person is selling or about to sell alcoholic beverages illegally or contrary to the aforesaid law, which, in this particular application resolves itself into the issue of whether the Authority considered public convenience and advantage in issuing the license to the individual respondents, Julius Klein and Herman Gilbert. In an Article 78 proceeding the criterion of review is whether the Authority acted arbitrarily, capriciously or without rational basis. This distinction is emphasized because of the tendency in some recent decisions to confuse the different criteria used in aforesaid proceedings.

It appears from the answers and records before this court that the Authority did not automatically arrive at its determination herein merely as a matter of predetermined general policy, but conducted field investigations, held a hearing, examined various records and statistics, and, in short, decided the license application herein on its own facts and mertis. The following factors, among others, were considered in connection with public convenience and advantage: proximity of schools and places of worship; the nature of the location and area; the reports of investigation, maps and data bearing on population density; existence of a concentrated and congested business area; gross volume of sales of the package liquor stores in the area; the propriety of an additional store in the area to eliminate the necessity of customers waiting for service in the petitioner's busy store which employs approximately eleven salesmen.

Matter of hub Wine & Liquor Co., Inc. v. State Liquor Authority, 16 N.Y.2d 112, 262 N.Y.S.2d 457, 209 N.E.2d 788, which involved a rather similar situation, is controlling. (See also, W. K. Wines and Liquors, Inc. v. State Liquor Authority, N.Y.L.J. 12/24/65, p. 8, col. 7, Supreme Court, Kings County, Special Term, Part I, Pino, J.) The fact that the Hub case involved the removal of an existing liquor store from one location to another does not, as contended by petitioner, make the decision distinguishable or vitiate the general principles set forth in said decision. The element of competition to the existing liquor store in the Hub case was just as damaging as it would have been from a completely new licensee across the street. In any event, under the principles enunciated in the Hub case and Joseph E. Seagram & Sons, Inc. v. Hostetter, 16 N.Y.2d 47, 56, 262...