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MATTER MAR-JEAR RESTAURANT CORP. v. NEW YORK STATE LIQUOR AUTHORITY (01/28/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


January 28, 1969

IN THE MATTER OF MAR-JEAR RESTAURANT CORP., RESPONDENT,
v.
NEW YORK STATE LIQUOR AUTHORITY, APPELLANT

Concur -- Eager, J. P., Capozzoli, McGivern and Steuer, JJ.

Respondent State Liquor Authority denied petitioner's application to change its corporate structure. The change involved was a sale of 80% of petitioner's stock by the principal stockholder, Margolies, to John P. Mink. When the license was originally issued, Margolies represented to the Authority that he intended to operate a restaurant type of business to which he would devote his personal attention. He did not do so. Instead he hired Mink and devoted no time to the operation of this business and drew nothing from it. Mink is not experienced in any phase of the restaurant or bar business and was, immediately prior to his connection with the premises, a police captain. The petitioner's brief concedes that he left the Department under doubtful circumstances and that he was friendly with one Ianello, said to be an underworld character. In addition, the operation of the premises under Mink's control showed large cash disbursements for unknown purposes. From these facts the respondent concluded that it was not satisfied that the alleged purchaser was the real party in interest and that approval of the transfer would involve a high degree of risk in the administration and enforcement of the law. We cannot say that under these findings the determination of the Authority lacks a reasonable basis. It is for the Authority to assess whether the proposed transferee is a person who will properly conduct the premises (Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299) and whether the alleged transferee is the real party in interest (Matter of Intino v. Hostetter, 29 A.D.2d 625). Where there are facts presented from which such conclusions can reasonably be drawn, the conclusion is for the Authority rather than the court (Matter of Wager v. State Liq. Auth., 4 N.Y.2d 465).

Disposition

Judgment entered August 23, 1968, annulling determination of respondent reversed and petition dismissed on the law, with $50 costs and disbursements to respondent-appellant.

19690128

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