162 Gardiners Ave. Lounge, Inc. v. New York State Liquor Authority

171 A.D.2d 662, 567 N.Y.S.2d 143, 1991 N.Y. App. Div. LEXIS 2797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 1991
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Liquor Authority, dated September 23, 1988, which, after a hearing, suspended the petitioner’s license for a 15-day period and imposed a $1,000 bond forfeiture.

Adjudged that the petition is granted, the determination is annulled, without costs or disbursements, and the charges are dismissed.

Although the evidence adduced at the administrative hearing established that a "Big Apple” video poker game was in operation on the licensed premises during an inspection in April 1987, the record fails to establish that the subject video game awarded a player anything of value for drawing a winning hand, including an extension of playing time or a free game (cf, Matter of Cos Dei San v New York State Liq. Auth., 147 AD2d 370). The record therefore lacks substantial evidence to support the respondent’s determination that the subject video game was a gambling device of the type prohibited by 9 NYCRR 53.1 (t), or that the petitioner permitted gambling on the licensed premises (see, Penal Law § 225.00 [6]; Alcoholic Beverage Control Law § 106 [6]; see also, Matter of Plato’s Cave Corp. v New York State Liq. Auth., 68 NY2d 791). Accordingly, the determination must be annulled. Bracken, J. P., Eiber, Balletta and Ritter, JJ., concur.