Café La China Corp. v. New York State Liquor Authority , 841 N.Y.S.2d 30 ( 2007 )

Determination of respondent, dated July 11, 2005, which, after an evidentiary hearing, sustained two charges of violating Alcoholic Beverage Control Law § 65 (2), and imposed a $3,000 civil penalty or, in the event of noncompliance, a 20-day suspension plus $1,000 bond forfeiture, confirmed, the petition denied and the proceeding (transferred to this Court by order of Supreme Court, New York County [Rosalyn Richter, J.], entered July 25, 2005) dismissed, without costs.

It is settled that judicial review of an administrative determination is limited to consideration of whether or not such determination is supported by substantial evidence (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]; Matter of Vallebuona v Kerik, 294 AD2d 44, 50 [2002]), and the issue of whether the agency’s findings are supported by substantial evidence is a question of law for the courts (300 Gramatan Ave. Assoc., 45 NY2d at 181; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 [1997]). Substantial evidence, which has been characterized as a “minimal standard” {Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 [1998]; Matter of Joseph v Johnson, 27 AD3d 563, 563 [2006]), or as comprising a “low threshold” (Matter of Patricia Ann Cottage Pub, Inc. v Mermelstein, 36 AD3d 816, 818 [2007]), must consist of such relevant proof, within the whole record, “as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc., 45 NY2d at 180; see also Matter of Star Rubbish Removal Corp. v Martinez, 15 AD3d 587, 588 [2005]). The Court of Appeals has noted that substantial evidence “requires less than ‘clear and convincing evidence’ {Matter of Carriage House Motor Inn v City of Watertown, 136 AD2d 895, supra), and less than proof by ‘a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt’ ” (FMC Corp., 92 NY2d at 188, quoting 300 Gramatan Ave. Assoc., 45 NY2d at 180). Indeed, as a burden of proof, “it demands only that ‘a given inference is reasonable and plausible, not necessarily the most probable‘ ” (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997], quoting Borchers and Markell, New York State Administrative Procedure and Practice § 3.12, at 51 [1995] [emphasis added]; see also Matter ofBerenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists (id. at 444; Matter of Stork Rest, v Boland, 282 NY 256, 267 [1940]; Matter of Acosta v Wollett, 55 NY2d 761, 763 [1981]; Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3d 388, 390 [2006]).

In this matter, we find that the determination as to both charges should be confirmed. “Hearsay evidence can be the basis of an administrative determination” and, if sufficiently probative, it alone may constitute substantial evidence (Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]; Matter of Hoch v New York State Dept. of Health, 1 AD3d 994 [2003]). Likewise, substantial evidence may be supplied by circumstantial evidence (Matter of S & R Lake Lounge v New York State Liq. Auth., 87 NY2d 206, 209 [1995]; Patricia Ann Cottage Pub,Inc., 36 AD3d at 818).

With regard to the first charge, Officer Reilly testified that the security guard at the establishment informed him that the intoxicated individual had been drinking inside the establishment before he stumbled outside, fell and hit his head. The fact that the officer could not recall the security guard’s exact words, or the type of beer the intoxicated individual was drinking, is irrelevant. As to the second charge, the undisputed evidence that the intoxicated person was drinking on the premises, coupled with the police officer’s testimony regarding his condition outside the premises on the officer’s arrival, is more than sufficient to sustain the agency’s determination as to the second charge. To the extent that petitioner’s arguments rest on conflicting testimony, we note that the Administrative Law Judge’s factual findings, which turn on the issue of credibility, are entitled to great weight (Matter of Grossberg v Christian, 245 AD2d 118 [1997]; Matter of Motell v Napolitano, 186 AD2d 989, 990 [1992]), and we are presented with no basis to disturb those findings. Concur—Tom, J.P., Andrias, Marlow and Nardelli, JJ.