SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 19, 1968
IN THE MATTER OF D. H. K. REST, INC., RESPONDENT,
NEW YORK STATE LIQUOR AUTHORITY, APPELLANT
Concur -- Eager, J. P., Steuer, Capozzoli, Tilzer and McGivern, JJ.
In an article 78 proceeding Special Term annulled an order of the State Liquor Authority which suspended the license of petitioner for a period of 10 days. The respondent's order followed an administrative hearing. Initially we wish to point out that Special Term's procedure was improper. The proceeding should have been transferred to this court for initial review of the Authority's determination (CPLR 7804, subd. [g]). To avoid unnecessary duplication, we have considered the record as if the matter had reached this Court in the prescribed manner. The record shows that petitioner did sell an alcoholic beverage to a minor and so was subject to sanction by respondent. However, the particular circumstances under which the sale was made show that petitioner was without fault and made reasonable efforts to determine the age of the minor. In view of this, we find that the imposition of the suspension was unduly harsh and, having the power to review the sanction (Matter of Mitthauer v. Patterson, 8 N.Y.2d 37), we conclude that the suspension should be deferred.
Judgment entered December 20, 1967, annulling the order of respondent State Liquor Authority of August 9, 1967, and remanding the matter to respondent for further action, unanimously modified on the law and the facts and in the exercise of discretion to direct that the order of respondent be modified to defer the suspension therein ordered, and otherwise confirmed without costs or disbursements.
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