Newport Wines & Liquors, Inc. v. Hilden Corp.

65 A.D.2d 786, 410 N.Y.S.2d 326, 1978 N.Y. App. Div. LEXIS 13644

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1978
• Status: Published

Opinion

In a proceeding pursuant to section 123 of the Alcoholic Beverage Control Law, Hilden Corp. appeals from (1) an order of the Supreme Court, Kings County, dated February 14, 1978, which, inter alia, directed a hearing as to the allegations of the petition and (2) a further order of the same court, dated May 19, 1978, which, after a hearing, permanently enjoined it from selling liquor and wine in violation of sections 101-bb and 101-bbb of the Alcoholic Beverage Control Law. Appeal from the order dated February 14, 1978 dismissed (see Matter of Aho, 39 NY2d 241, 248). Order dated May 19, 1978 affirmed. Petitioners are awarded one bill of costs to cover both appeals. Section 123 of the Alcoholic Beverage Control Law provides, in pertinent part: "1. If any person * * * shall traffic in liquor, wine or beer contrary to any provision of this chapter, or otherwise unlawfully * * * the liquor authority or any taxpayer residing in the city * * * in which * * * such traffic is being conducted * * * may present a verified petition to a justice of the supreme court at a special term * * * for an order enjoining such person engaging or participating in such activity * * * If the justice or court is satisfied that such person * * * has unlawfully * * * sold liquor, wine or beer * * * contrary to the provisions of this chapter * * * an order shall be granted enjoining such person from thereafter engaging or participating in or carrying on such activity or business.” This section is applicable to cases involving the unlicensed sale or manufacture of alcoholic beverages, as well as licensed sales which directly contravene particular mandatory proscriptions of the Alcoholic Beverage Control Law (see Matter of J. R. Liqs. v State Liq. Auth., 46 Mise 2d 867, affd 25 AD2d 819; Matter of William H. Van Vleck, Inc. v Klein, 49 Mise 2d 240, 241; cf. Matter of Rosenblum v Al’s Liqs., 50 Mise 2d 1036, affd 27 AD2d 521). In the case at bar, Hilden Corp. is charged with selling wine and liquor below the legal minimum price therefor in violation of sections 101-bb and 101-bbb of the Alcoholic Beverage Control Law. The petitioners’ application for an injunction was properly made at Special Term pursuant to section 123 of the Alcoholic Beverage Control Law. Hopkins, J. P., Martuscello, Latham and Cohalan, JJ., concur.