Woodmere Catering Corp. v. New York State Liquor Authority

New York Supreme Court

Woodmere Catering Corp. v. New York State Liquor Authority

28 Misc. 2d 698, 212 N.Y.S.2d 465, 1961 N.Y. Misc. LEXIS 3307

New York Supreme Court·Decided February 28, 1961·Published

Opinion

Makio Pittoni, J.

This is an application, pursuant to article 78 of the Civil Practice Act, to review the determination of the State Liquor Authority canceling the license of the petitioner, and for an order reversing and annulling that determination.

The Authority claims that the matter should be heard in the first instance by the Appellate Division and not by Special Term. The Authority is correct. The licensee, pursuant to sections 119 and 121 of the Alcoholic Beverage Control Law, appeared before a Hearing Commissioner of the Authority in a proceeding to suspend, cancel or revoke the petitioner’s license; a hearing was had on the issue of making a false statement; and the petitioner thereafter entered a plea of “no contest ” with an explanation. He testified as to how the alleged violation occurred. Therefore, under the circumstances, this is a proceeding which must be transferred to the Appellate Division, Second Department, for determination in the first instance (Civ. Prac. Act, § 1296; Matter of Colonial Liq. Distrs. v. O’Connell, 269 App. Div. 496 ; Matter of Brenner v. Bruckman, 253 App. Div. 607).

Since the matter must be and is transferred to the Appellate Division, any application for a stay must be made to that court.

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Makio Pittoni, J.

This is an application, pursuant to article 78 of the Civil Practice Act, to review the determination of the State Liquor Authority canceling the license of the petitioner, and for an order reversing and annulling that determination.

The Authority claims that the matter should be heard in the first instance by the Appellate Division and not by Special Term. The Authority is correct. The licensee, pursuant to sections 119 and 121 of the Alcoholic Beverage Control Law, appeared before a Hearing Commissioner of the Authority in a proceeding to suspend, cancel or revoke the petitioner’s license; a hearing was had on the issue of making a false statement; and the petitioner thereafter entered a plea of “no contest ” with an explanation. He testified as to how the alleged violation occurred. Therefore, under the circumstances, this is a proceeding which must be transferred to the Appellate Division, Second Department, for determination in the first instance (Civ. Prac. Act, § 1296; Matter of Colonial Liq. Distrs. v. O’Connell, 269 App. Div. 496 ; Matter of Brenner v. Bruckman, 253 App. Div. 607).

Since the matter must be and is transferred to the Appellate Division, any application for a stay must be made to that court.

Woodmere Catering Corp. v. New York State Liquor Authority, 28 Misc. 2d 698, 212 N.Y.S.2d 465, 1961 N.Y. Misc. LEXIS 3307 (N.Y. Super. Ct. 1961).

Pincite

28 Misc. 2d 698 (Woodmere Catering Corp. v. New York State Liquor Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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