Morris v. Tyler

Appellate Division of the Supreme Court of New York

Morris v. Tyler

29 A.D.2d 856, 288 N.Y.S.2d 496, 1968 N.Y. App. Div. LEXIS 4362

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 26, 1968

StatusPublished

This text of 29 A.D.2d 856 (Morris v. Tyler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Morris v. Tyler, 29 A.D.2d 856, 288 N.Y.S.2d 496, 1968 N.Y. App. Div. LEXIS 4362 (N.Y. Ct. App. 1968).

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Opinion

Judgment dismissing a petition in an article 78 proceeding to annul respondent’s determination temporarily suspending petitioner’s license to operate a newsstand and imposing a fine, unanimously affirmed, without costs or disbursements to either party as against the other. There has been no showing that petitioner was frustrated or circumscribed in any way from a “ fair opportunity ” to make a full presentation of any proof he may have had. To the contrary, it is plain the completest latitude was extended to him. Nevertheless, he has not met the “ heavy burden ” of demonstrating a plan of intentional discrimination or invidious treatment of him by the enforcing authorities. (People v. Utica Daw’s Drug Co., 16 A D 2d 12.) Proof of “ mere nonenforcement ” is not sufficient. (Matter of DiMaggio v. Brown, 19 N Y 2d 283, 291.) Nor does it relieve the licensee of the onus of his own derelictions. Concur — Eager, J. P., Steuer, Capozzoli, McGivern and Rabin, JJ.

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Judgment dismissing a petition in an article 78 proceeding to annul respondent’s determination temporarily suspending petitioner’s license to operate a newsstand and imposing a fine, unanimously affirmed, without costs or disbursements to either party as against the other. There has been no showing that petitioner was frustrated or circumscribed in any way from a “ fair opportunity ” to make a full presentation of any proof he may have had. To the contrary, it is plain the completest latitude was extended to him. Nevertheless, he has not met the “ heavy burden ” of demonstrating a plan of intentional discrimination or invidious treatment of him by the enforcing authorities. (People v. Utica Daw’s Drug Co., 16 A D 2d 12.) Proof of “ mere nonenforcement ” is not sufficient. (Matter of DiMaggio v. Brown, 19 N Y 2d 283, 291.) Nor does it relieve the licensee of the onus of his own derelictions. Concur — Eager, J. P., Steuer, Capozzoli, McGivern and Rabin, JJ.

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Bluebook (online)

29 A.D.2d 856, 288 N.Y.S.2d 496, 1968 N.Y. App. Div. LEXIS 4362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-tyler-nyappdiv-1968.