Matter of Five Towns Wines & Liquors, Inc. v. New York State Liq. Auth. , 995 N.Y.S.2d 16 ( 2014 )

Matter of Five Towns Wines & Liquors, Inc. v New York State Liq. Auth. (2014 NY Slip Op 07254)

Matter of Five Towns Wines & Liquors, Inc. v New York State Liq. Auth.

2014 NY Slip Op 07254

Decided on October 23, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2014
Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse, Clark, JJ.

13306 101502/13

[*1] In re Five Towns Wines & Liquors, Inc., Petitioner,

v

New York State Liquor Authority, Respondent.

Mehler & Buscemi, New York (Francis R. Buscemi of counsel), for petitioner.

Margarita Marsico, New York, for respondent.

Determination of respondent, dated August 27, 2013, sustaining the charge of a violation of Alcoholic Beverage Control Law Section § 65(1) and imposing a $2,000 civil penalty, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Shlomo Hagler, J.], entered on or about January 27, 2014), dismissed, without costs.

Respondent's finding that petitioner sold an alcoholic beverage to a person under the age of 21 in violation of Alcoholic Beverage Control Law § 65(1) is supported by substantial evidence (see Matter of S & R Lake Lounge v New York State Liq. Auth. , 87 NY2d 206 [1995]). The uncontroverted testimony of a police officer involved in the undercover operation was corroborated by a copy of the undercover agent's driver's license and the marked $20 bill recovered from petitioner's retail liquor store. The officer, who knew the agent was 18 years old based on her driver's license, observed the agent enter the store and emerge approximately two minutes later carrying a paper bag with a bottle of red wine in it, after which the officer arrested a person matching the agent's description of the person who had sold her the alcohol. Petitioner's president confirmed that the person arrested at the scene was working at the store that night; he offered no evidence to contradict the officer's testimony.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2014

CLERK