La Cucina Mary Ann, Inc. v. State Liquor Authority

150 A.D.2d 450, 541 N.Y.S.2d 220, 1989 N.Y. App. Div. LEXIS 6511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1989
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Liquor Authority, dated July 23, 1986, suspending the petitioner’s license for a 10-day period and requiring the forfeiture of its $1,000 compliance bond, the appeal is from an order and judgment (one paper) of the Supreme Court, Queens County (Lonschein, J.), dated July 8, 1987, which vacated that portion of the respondent’s determination which imposed as a penalty the forfeiture of the $1,000 compliance bond.

Ordered that the order and judgment is affirmed, with costs.

The Supreme Court properly vacated as excessive that portion of the respondent’s determination which ordered forfeiture of the petitioner’s $1,000 compliance bond (see, Matter of Idlewild Rest. Tavern v State Liq. Auth., 146 AD2d 629; Matter of MNDN Rest, v Gazzara, 128 AD2d 781, 782; Matter of Seminaro v State Liq. Auth., 51 AD2d 680; cf., Matter of Muidallap Corp. v State Liq. Auth., 143 AD2d 9).

In affirming the order and judgment appealed from, we remind counsel for the appellants of his affirmative obligation to advise the court of authorities adverse to his position (see, Amazon Coffee Co. v Trans World Airlines, 111 AD2d 776, 778; Matter of Cicio v City of New York, 98 AD2d 38). Although counsel for the appellants represented the appellant State Liquor Authority in connection with a recent prior appeal involving precisely the same issue—in which this court reduced the penalty imposed in the same manner as did the Supreme Court in the matter at bar (see, Matter of MNDN Rest, v Gazzara, supra)—counsel has nevertheless failed to apprise the court of this previously decided precedent in his brief. Since counsel also represented the State Liquor Authority with regard to the MNDN case, there can be no excuse for the failure to bring the holding to the court’s attention (cf., Amazon Coffee Co. v Trans World Airlines, supra). Brown, J. P., Kooper, Harwood and Rosenblatt, JJ., concur.