Matter of Prime Six, Inc., d/b/a Woodland v New York State Liq. Auth.

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Matter of Prime Six, Inc., d/b/a Woodland v New York State Liq. Auth. 2019 NY Slip Op 33330(U) October 30, 2019 Supreme Court, Kings County Docket Number: 512697/2019 Judge: Peter P. Sweeney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 11/08/2019 01:58 PM INDEX NO. 512697/2019 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No.: 512697/2019 --------------------------------------------------------------------x In the Matter of the Application of PRIME SIX, INC. d/b/a WOODLAND, Petitioner, DECISION/ORDER For Judgment Pursuant to CPLR Article 78 -againstTHE NEW YORK STATE LIQUOR AUTHORITY and VINCENT G. BRADLEY, in his official capacity as Chairman of the New York State Liquor Authority, Respondents, --------------------------------------------------------------------x The following papers numbered 1 to 8 were read on this petition: Papers: Numbered: Order to Show Cause........ .................................................... ........... .. .. Petition..................................................... ..... .................... .................. . Petitioner's Supporting Papers Affidavits/Affirmations/Exhibits/ Memos of Law............... .. Respondents' Answer .............. ............................................. ....... .... ... . Respondents' Answering Papers Affidavits/Affirmations/Exhibits/ Memos of Law............... .. Petitioner's Rep! Papers Affidavits/Affirmations/Exhibits/ Memos of Law.. .............. . Respondent's Emergency Affirmation in Opposition with Affidavits/ Affirmations/Exhibits .............. .... .......................... . Sur-Reply to Respondent's Emergency Affirmation in Opposition with Affirmations/Affidavits/Exhibits/Memos of Law.......... . 1 2 Upon the foregoing papers, the petition is decided as follows: -1- 1 of 5 3 !'.) 4 ·~ '·""' -,..... - ~ ~ c_) ·< I C.I 6 ::- " 7 C5 w 8 ,' - ,-' . \ .' < ,.' -. ... ' lj : 1: [*FILED: 2] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 99 INDEX NO. 512697/2019 RECEIVED NYSCEF: 11/08/2019 In this proceeding commenced pursuant to Article 78 of the CPLR, brought by order to sl1ow cause, the petitioner, PRIME SIX, INC. <lib/a WOODLAND seeks to vacate and annul a determination by respondent, the NEW YORK STATE LIQUOR AUTHORITY ("SLA") dated June 6, 2019, which summarily suspended its on-premises liquor license in accordance with New York State Administrati\'e Procedure Act {SAPA) § 401(3). Petitioner also seel<s an order staying and restraining respondent from enforcement of said summary suspension pending the final determination of this proceeding. The petitioner operates a restaurant, bar and lounge in the Park Slope neighborhood in Brooklyn located at 242 Flatbusl1 A vent1e alk/a 76-78 6tl1 Street, Brooklyn, New York. On June 6, 2009, the SLA issued an "'Emergency Surnrp_ary Order of Suspension", summaril)' suspending petitioner's liquor license, \Vithout providing petitioner witl1 advanced notice or an opportunity to be heard. Respondent SLA clai1ns that it took such action because the ''public health, safety, or welfare imperatively reqttire[d] emergency action... " (New York State Ad1ninistrative Procedure Act§ 401[3] ). 1 The Order indicated that such action was necessary as 39 separate violations of the Rules of the State Liqt1or Authority were found. Under 11ormal circumstances, the SLA is 1 The New York State Administrative Procedure Act § 401(3) provides that: "If the agency finds tl1at public healtl1, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upo11 service of a certified copy of such order on the licensee, .wl1ichever shall be later, pending proceedings for revocation or otl1er action. These proceedings shall be promptly instituted and determined." -2- 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 99 INDEX NO. 512697/2019 RECEIVED NYSCEF: 11/08/2019 without authority to revoke, cancel or suspend a liquor license without providing the licensee with notice of the revocation a11d ru1 opportunity to be l1eard. Alcohol Beverage Control Law § 119(2) and (3) provides: 2. The liquor at1tl1ority may on its own initiative or 011 complaint of any person institute proceedings to revoke, cancel or suspend any retail license and may impose a civil penalty against the licensee after a 11eru·ing at which tl1e licensee sl1all be given an opportunity to be heard. Such hearing shall be held in such manner and upon such notice as may be prescribed by the rules of the liquor authority. 3. All other licenses or per1nits issued under this chapter inay be revoked, cancelled, suspended and/or made subject to the imposition of a civil penalty by the liquor authority after a hearing to be 11eld in the inanner to be determined by the rules of the liquor authority. Tl1ere are no such procedural require1nents under SAPA § 401(3). The petitioner claims, in sum and substance, tl1at the SLA's detern1ination tl1at pi1blic health, safety, and/or V.'elfare imperatively required emergency action was arbitrary and capricious and that the SLA abused its discretion in suspendi11g its liquor license without giving it advanced notice and an opportunity to be heard. Respondents contend that since the summary suspension of petitio11er' s liquor license \Vas not a final detenninatio11, t11e Court lacks authority to review the detennination. Respo11de11ts further co11tend the summary suspension was warranted under tl1e circu1nstances. Tl1e Cou1t agrees that since the SLA's determination to summarily suspend petitioner's liquor license was not a final determinatio11, this Court is without authority to review the determination. An article 78 proceeding can only be brought "after the determination to be reviewed beco1nes final and binding t1pon the petitioner" (CPLR 217[1 ]). In Matter of Essex -3- 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 99 INDEX NO. 512697/2019 RECEIVED NYSCEF: 11/08/2019 Counry' v Zagata, 91 NY2d 447, 453 [1998], The Court of Appeals held that an agency action is final when the decision maker an·ives at a "definitive position on the issue that inflicts an actual, concrete i11jury." The Court further held that "[a] determination will not be deemed final becat1se it stands as the age11cy's last word on a discrete legal issue tl1at arises during an administrative proceeding. Tl1ere must additionally be a finding that the injury purportedly inflicted by t11e agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. If further agency proceedings might render the disp11ted issue inoot or academic, then the agency position cannot be considered defi11itive or t11e injury actual or concrete" (id at 453-454 [internal quotation marks and citations omitted]; see also },;latter a/Gordon v Rush, 100 NY2d 236, 242-243 [2003]). Here, the petitioner is legally entitled to contest the summary suspension and seelc other ameliorative relief at an evidentiary 11earing before the SLA. Accordingly, since admi11istrati,,e proceedings 1ni_ght render the disputed issue moot or academic, the SLA's position cannot be considered definitive or the injury to the petitioner actual or concrete. The case of Bracco's Cla1n & Oyster Bar Inc. v, Nelv }'ark State Liquor Auth., 52 Misc. 3d 1225(A), 43 N.Y.S.3d 766 [2016], which respondents cite in support of their position that the Court lacks authority to l1ear this case is almost factually identical to this case ai1d fully supports tl1e Court's holding. Recognizing that an agency action must be final and binding before an aggrieved party may seek judicial review m1der Article 782 , and that one who objects to the act of 2 Citing Boxers Enters. LLCv. The Ne'r! York State Liquor Ai1th., 2012 N.Y. Slip Op 32482(U), 2012 WL 4752441 [Sup Ct, N.Y. County 2012] [citing CPLR 7801 [!]]. 1 -4- 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 11/08/2019 01:58 PM NYSCEF DOC. NO. 99 INDEX NO. 512697/2019 RECEIVED NYSCEF: 11/08/2019 an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court oflaw3, the Court held that the summary suspension of the petitioner's liquor license pursuant to SAPA § 401(3) could not not reviewed by the Court (id.). As here, the Court concluded that the determinatin to summarily suspend petitioner' s liquor license was not final because the petitioner would have the opportunity to contest the summary suspension at an evidentiary hearing before the SLA (id., citing 150 RFI' Varick Corp. v. New York State Liquor Auth., 117 A.D.3d 575, 576, 986 N.Y.S.2d 102 [1st Dept 2014] ). The Court has reviewed the cases cited by the petitioner in support of its contention that this matter is properly reviewable and finds them to be unpersuasive and/or not on point. For the above reasons, it is hereby ORDERED and ADJUDGED that the petition is DISMISSED and it is further ORDERED that petitioner' s request for a preliminary injunction is DENIED. Dated: October 30, 2019 ... . PETER P. SWEENEY, J.S.c. ~_: .. 0 3 Citing Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservalion, 87 N.Y.2d 136, 141, 638 N.Y.S.2d 388 [1995] [internal quotations and citation omitted]. -5- 5 of 5

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