SHORTS BAR OF ROCHESTER INC v. NEW YORK STATE LIQUOR AUTHORITY

Reset A A Font size: Print

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

Matter of SHORTS BAR OF ROCHESTER INC., Mike Carder's Cock & Feather Ltd., Doing Business as Maddy's and Ukrainian American National Club Inc., Petitioners, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.

Decided: April 29, 2005

PRESENT:  SCUDDER, J.P., KEHOE, MARTOCHE, SMITH, AND HAYES, JJ. Conboy, McKay, Bachman & Kendall, LLP, Watertown (Stephen W. Gebo of Counsel), for Petitioners. Thomas E. Butler, Buffalo, for Respondent.

In these consolidated CPLR article 78 proceedings transferred to this Court pursuant to CPLR 7804(g), petitioners seek to annul separate determinations that they violated Alcoholic Beverage Control Law § 106(6) and 9 NYCRR 53.1(m) by permitting gambling on their premises.   Petitioners contend that the determinations are not supported by substantial evidence.   We disagree.   A “determination is regarded as being supported by substantial evidence when the proof is ‘so substantial that from it an inference of the existence of the fact found may be drawn reasonably’ ” (Matter of FMC Corp. [Peroxygen Chems. Div.] v. Unmack, 92 N.Y.2d 179, 187, 677 N.Y.S.2d 269, 699 N.E.2d 893, quoting Matter of 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   It is the responsibility of the administrative agency to weigh the evidence and choose among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency (see 300 Gramatan Ave. Assoc., 45 N.Y.2d at 179-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183;  see also Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Silberfarb v. Board of Coop. Educ. Servs., 60 N.Y.2d 979, 981, 471 N.Y.S.2d 257, 459 N.E.2d 482).   Here, there is substantial evidence supporting the inference that purchasers of the “Ad-Tab” cards sold by petitioners paid their consideration not for the discount coupons on the cards but rather for the opportunity to win prize money according to a published schedule of odds (see Matter of Black North Assoc. v. Kelly, 281 A.D.2d 974, 974-976, 722 N.Y.S.2d 666;  Matter of J A J K, Inc. v. Division of Alcoholic Beverage Control, 272 A.D.2d 963, 711 N.Y.S.2d 367).   We have not considered the challenges by petitioners to the civil penalties imposed upon them because those challenges are inadequately briefed.

It is hereby ORDERED that the determinations be and the same hereby are unanimously confirmed without costs and the petitions are dismissed.

MEMORANDUM: