Matter of S & S Pub, Inc. v New York State Liq. Auth.
2013 NY Slip Op 05912 [109 AD3d 933]
September 18, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 30, 2013


In the Matter of S& S Pub, Inc., Petitioner,
v
New York State Liquor Authority, Respondent.

[*1] Carreras & McCallen PLLC, New York, N.Y. (Matthew Leone of counsel), for petitioner.

Jacqueline P. Flug, Albany, N.Y. (Mark D. Frering and Michael Ammirato of counsel), for respondent.

Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated May 3, 2012, as adopted the recommendation of an administrative law judge dated February 20, 2012, made after a hearing, sustaining two charges that the petitioner had violated Alcoholic Beverage Control Law § 65 (1), and imposed a civil penalty in the sum of $6,000.

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Alcoholic Beverage Control Law § 65 provides, in relevant part, that: "[n]o person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to . . . [a]ny person, actually or apparently, under the age of twenty-one years."

" 'Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence' " (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v New York State Liq. Auth., 103 AD3d 648, 651 [2013], quoting Matter of Albany Manor, Inc., v New York State Liq. Auth., 44 AD3d 759, 759 [2007]). Substantial evidence is "[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). " 'The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable' " (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v New York State Liq. Auth., 103 AD3d at 652, quoting Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011] [citations omitted]).

Here, contrary to the petitioner's contention, the determination of the respondent, the New York State Liquor Authority, sustaining two charges that the petitioner violated Alcoholic Beverage Control Law § 65 (1), is supported by substantial evidence (see Matter of JNJ Enters., Inc. [*2]v New York State Liq. Auth., 79 AD3d 750 [2010]; Matter of S & S Pub, Inc. v New York State Liq. Auth., 49 AD3d 654, 655 [2008]; Matter of 294 Grand Ave. Grocery Corp. v New York State Liq. Auth., 12 AD3d 521 [2004]).

In addition, the penalty imposed is not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of S & S Pub, Inc. v New York State Liq. Auth., 49 AD3d at 655; Matter of 294 Grand Ave. Grocery Corp. v New York State Liq. Auth., 12 AD3d at 522). Dillon, J.P., Roman, Miller and Hinds-Radix, JJ., concur.