Dellwood Foods, Inc. v. Barber

90 A.D.2d 892, 456 N.Y.S.2d 515, 1982 N.Y. App. Div. LEXIS 19161

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1982
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent Commissioner of Agriculture and Markets which denied petitioner’s application for an extension of its milk dealers’ license to Dutchess, Ulster and Greene Counties. Petitioner Dellwood Foods, Inc., was the holder of a current and valid milk dealers’ license pursuant to which it was permitted to distribute milk in 14 counties in New York State when, on June 14,1979, it filed with the Division of Dairy Industry Services of the New York State Department of Agriculture and Markets an application for an extension of its milk dealers’ license to Dutchess, Ulster and Greene Counties. Its primary goal in making the application was apparently to serve two of its major chain store customers who were expanding their operations from other areas into the three counties. Following a hearing on the matter, it was recommended by the hearing officer that the application be denied. Thereafter, respondent commissioner reached the same conclusion and, in a decision dated March 9,1981, denied the application upon the grounds that a contrary determination “would tend to a destructive competition in markets already adequately served and would not be in the public interest”. The instant proceeding ensued, and we hold that the challenged determination should be confirmed. Examination of the record herein reveals ample evidence that there is already keen competition between the milk dealers presently operating in the three counties and that these dealers are generally operating below capacity and struggling to maintain sufficient volumes of business so that their operations will be economically feasible. Additionally, the evidence presented indicates that there has been a decline in the birth rates and in the number of enrolled school-age children in these counties in recent years, and it is this younger age group that is generally associated with the highest consumption of milk. Given these circumstances and also the fact that it appears upon the instant record that the counties are being adequately served by the presently licensed milk dealers, we find unpersuasive petitioner’s argument that respondent’s determination is not supported by a preponderance of the evidence (cf. Matter of Tuscan Dairy Farms v Barber, 45 NY2d 215, app dsmd 439 US 1040; Matter of Fair Lawn Dairies v Barber, 70 AD2d 974, app dsmd 48 NY2d 881). Determination confirmed, and petition dismissed, with costs. Mahoney, P. J., Sweeney, Main, Casey and Weiss, JJ., concur.