Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: OZNOR CORPORATION, doing business as Clawson's Grocery, Petitioner, v. COUNTY OF MONROE, Monroe Department of Public Health and its President, Carol Ann Podgorski, in her official capacity, Respondents.

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PINE, JJ. Jeanne M. Colombo, Rochester, for Petitioner. Daniel M. Delaus, Jr., County Attorney, Rochester (Paul D. Fuller of Counsel), for Respondents.

 Petitioner commenced this proceeding seeking to annul the determination that it violated the Public Health Law by selling tobacco to a minor.   Initially, we note that the petition raises no substantial evidence issue, and thus Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g).  Nevertheless, we consider the merits of the petition in the interest of judicial economy (see Matter of Ryder v. Daines, 57 A.D.3d 1411, 870 N.Y.S.2d 208;  Matter of Rauch v. DeBuono, 265 A.D.2d 797, 696 N.Y.S.2d 923).

 We reject the contention of petitioner that its constitutional rights were violated by virtue of the fact that the formal notice of violation was signed by an inspector from the Monroe County Department of Health who did not observe the violation (see Matter of Fay's Inc. v. New York State Dept. of Health, 241 A.D.2d 815, 660 N.Y.S.2d 470).   Also contrary to the contention of petitioner, its right to due process in this administrative proceeding was not violated inasmuch as the record establishes that it received adequate notice of the allegations against it and an opportunity to be heard (see generally Matter of Tax Foreclosure No. 35, 127 A.D.2d 220, 514 N.Y.S.2d 390, affd. 71 N.Y.2d 863, 527 N.Y.S.2d 747, 522 N.E.2d 1044).   We have considered petitioner's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.