Diegelman v. State of New York Liquor Authority

50 A.D.2d 720, 375 N.Y.S.2d 70, 1975 N.Y. App. Div. LEXIS 12600

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1975
• Status: Published

Opinion

— Judgment unanimously affirmed, without costs. Memorandum: Petitioners seek in an article 78 proceeding to annul the respondent’s, New York State Liquor Authority, determination to cancel their special on-premises liquor license. There is substantial evidence, considering the record as a whole, to support a determination that petitioner Diegelman, who had an adverse license history, was in unlawful criminal possession of an unloaded weapon. We do not find that the penalty of cancellation for such "improper conduct” (9 NYCRR 53.1[n]) to be arbitrary, capricious or an abuse of discretion "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness” (see Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 NY2d 222, 233). (Appeal from judgment of Erie Supreme Court in article 78 proceeding.) Present — Moule, J. P., Cardamone, Simons, Mahoney and Witmer, JJ.