Fellowmen Community Development Corp. v. New York State Liquor Authority

219 A.D.2d 871, 631 N.Y.S.2d 955, 1995 N.Y. App. Div. LEXIS 11038

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1995
• Status: Published

Opinion

Determination unanimously annulled on the law with costs and petition granted in accordance with the following Memorandum: The determination that petitioner caused or permitted alcoholic beverages to be sold or delivered to minors in violation of Alcoholic Beverage Control Law § 65 (1) is not supported by substantial evidence. Evidence of petitioner’s conduct consisted entirely of hearsay. Although the State Liquor Authority is entitled to consider hearsay evidence, such evidence, if " 'controverted seriously’ ”, may fail to provide the substantial evidence necessary to support the Authority’s determination (Matter of Karam v New York State Liq. Auth., 163 AD2d 869; see also, Matter of 125 Bar Corp. v State Liq. Auth., 24 NY2d 174, 179-180). Here, the statements of one minor and her boyfriend presented conflicting versions of the purchase of a wine cooler and the statement of the minor was obtained while she was a patient at the intensive care unit of a hospital. The boyfriend’s version was controverted by sworn statements submitted by petitioner. The statement of another minor does not reveal that the beverage she was drinking was acquired at petitioner’s establishment. There is no evidence regarding the credibility of the persons who gave the statements. Thus, those statements do not constitute substantial evidence to support the determination (see, Matter of Karam v New York State Liq. Auth., supra). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Frazee, J.) Present — Denman, P. J., Green, Fallon, Balio and Boehm, JJ.