Matter of Platinum Pleasures v New York State Liq. Auth.

Matter of Platinum Pleasures v New York State Liq. Auth. 2014 NY Slip Op 07578 Decided on November 6, 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 November 6, 2014
Mazzarelli, J.P., Acosta, DeGrasse, Clark, JJ.
13401 101458/13

[*1] In re Platinum Pleasures, Petitioner-Appellant,

v

New York State Liquor Authority, Respondent-Respondent.

Albert J. Pirro, Jr., White Plains, for appellant.

Jacqueline P. Flug, Albany (Mark D. Frering of counsel), for respondent.

Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered March 3, 2014, denying the petition to annul respondent New York State Liquor Authority's determination, dated July 1, 2013, issued on default, to revoke petitioner's on-premises liquor license, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted, the determination vacated, and the matter remanded for a hearing on the underlying charges.

Regardless of whether petitioner defaulted under 9 NYCRR 54.2, it established that the revocation order should be vacated

because it had a reasonable excuse for the alleged default and a meritorious defense. Petitioner's default was excusable because its former counsel explained that he had a regular custom of emailing respondent's counsel when conducting business, that his communications had never been rejected before, that the email of the notice of appearance and not-guilty plea was never rejected by respondent, and that his repeated requests before the default was issued, inquiring as to the status of the pending administrative proceeding, went unanswered. Further, petitioner made a prima facie showing of a meritorious defense to the charges, as the alleged misconduct occurred on the public sidewalk outside the licensed premises (see 9 NYCRR 48.2; Alcoholic Beverage Control Law § 106[6]; Matter of JA Rocks Inc. v New York State Liq. Auth., 43 AD3d 663, 663 [1st Dept 2007]).

We note that upon learning of the revocation order, petitioner's former counsel promptly requested that respondent vacate the finding, and petitioner timely commenced the instant

article 78 proceeding.

Given the foregoing determination, we need not reach petitioner's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 6, 2014

CLERK