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In re Sherwyn Toppin Marketing Consultants, Inc.

Supreme Court of New York, Second Department

February 6, 2013

In the Matter of Sherwyn Toppin Marketing Consultants, Inc., doing business as Temptations Tavern, petitioner,
v.
New York State Liquor Authority, respondent. Index No. 24980/11

Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang, Laura R. Johnson, and Andrew Ameno of counsel), for respondent.

Ambrose W. Wotorson, Brooklyn, N.Y. (Martin Mehler of counsel), for petitioner.

DANIEL D. ANGIOLILLO, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL LEONARD B. AUSTIN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Liquor Authority dated November 2, 2011, which adopted the recommendation of an administrative law judge dated June 13, 2011, made after a hearing, sustaining charges that the petitioner had violated Alcoholic Beverage Control Law §§ 106(5) and 118(1) and (3) and Rule 36.1(q) of the Rules of the New York State Liquor Authority, and cancelled the petitioner's liquor license.

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

On March 17, 2011, the respondent, the New York State Liquor Authority (hereinafter the SLA), commenced an administrative enforcement proceeding (hereinafter the SLA proceeding) against the petitioner to cancel or revoke its on-premises liquor license due to its alleged violation of, inter alia, Alcoholic Beverage Control (hereinafter ABC) Law §§ 106(5) and 118(1) and (3) and Rule 36.1(q) of the Rules of the New York State Liquor Authority. The SLA alleged, among other things, that the petitioner sold alcoholic beverages during prohibited hours of sale on April 17, 2010 (Charge No. 5), permitted the consumption of alcoholic beverages on its premises more than one half-hour after the start of prohibited hours of sale of alcoholic beverages on April 17, 2010 (Charge No. 6), January 23, 2011 (Charge No. 10), and February 12, 2011 (Charge No. 12), caused a continuing pattern of noise, disturbance, misconduct, or disorder at its premises which adversely affected the health and welfare of the neighborhood on and before March 17, 2011 (Charge No. 13), and that its premises became a focal point for police attention on and before March 9, 2011, due to the occurrence of noise, disturbance, misconduct, and disorder in front of the premises or in its parking lot (Charge No. 14).

At approximately the same time, the City of New York commenced an action (hereinafter the nuisance action) in the Supreme Court, Kings County, alleging that the premises, which was owned by the petitioner and operated as a nightclub known as Temptations, constituted a public nuisance pursuant to Administrative Code of the City of New York § 7-703 (hereinafter the nuisance abatement law) due to events which transpired at the premises on, among other dates, April 17, 2010, January 22, 2011, February 12, 2011, and March 5, 2011. The SLA was named as a defendant in the nuisance action in compliance with ABC Law § 124.

After conducting a hearing in the nuisance action, the Supreme Court issued an interim order dated April 4, 2011. In the interim order, the court found that the City had not established by clear and convincing evidence that the petitioner violated the nuisance abatement law or any provision of the ABC Law and had proven only one incident involving the after-hours consumption of an alcoholic beverage. The court issued a final order in the nuisance action dated June 15, 2011, which was consistent with the interim order.

In the SLA proceeding, an administrative law judge held a hearing. In a written determination dated June 13, 2011, the administrative law judge found there was substantial evidence submitted by the SLA to sustain Charge Nos. 5, 6, 10, 12, 13, and 14. The petitioner submitted a controversion of the administrative law judge's findings with respect to the charges which were sustained. On November 2, 2011, the SLA made a final determination, which adopted the administrative law judge's recommendation as to the charges and cancelled the petitioner's liquor license. The petitioner commenced this proceeding pursuant to CPLR article 78 to review the SLA's final determination.

Contrary to the petitioner's contention, the administrative law judge's determination in the SLA proceeding was not barred by the doctrines of res judicata and collateral estoppel.

Res judicata "precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter'" (Matter of Josey v Goord, 9 N.Y.3d 386, 389, quoting Matter of Hunter, 4 N.Y.3d 260, 269; see Landau, P.C. v LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13). "Under New York's transactional approach to the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'" (Parolisi v Slavin, 98 A.D.3d 488, 489, quoting O'Brien v City of Syracuse, 54 N.Y.2d 353, 357). The doctrine applies not only to the parties of record in the first action, but also to those in privity with those parties (see Parolisi v Slavin, 98 A.D.3d at 490).

"The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling" (Capellupo v Nassau Health Care Corp., 97 A.D.3d 619, 621; see Tydings v Greenfield, Stein & Senior, LLP, 11 N.Y.3d 195, 199). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" (City of New York v College Point Sports Assn., Inc., 61 A.D.3d 33, 42; see Buechel v Bain, 97 N.Y.2d 295, 304, cert denied 535 U.S. 1096; Maiello v Kirchner, 98 A.D.3d 481, 482). Once that burden is met, the party opposing the application of collateral estoppel "bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (City of New York v College Point Sports Assn., Inc., 61 A.D.3d at 42; see Maiello v Kirchner, 98 A.D.3d at 482; Capellupo v Nassau Health Care Corp., 97 A.D.3d at 621-622).

The doctrines are "generally applicable to quasi-judicial administrative determinations that are rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law'" (Matter of Josey v Goord, 9 N.Y.3d at 390, quoting Ryan v New York Tel. Co., 62 N.Y.2d 494, 499). However, res judicata should be applied to an administrative determination "only if such application is consistent with the nature of the particular administrative adjudication" (Matter of Venes v Community School Bd. of Dist. 26, 43 N.Y.2d 520, 524 [internal quotation marks and citation omitted]; see Matter of Josey v Goord, 9 N.Y.3d at 390).

Moreover, where a party to an action or proceeding is a nominal party and played no role and did not participate, even where the party is named as a plaintiff or defendant, the doctrines of res judicata and collateral estoppel should not be applied (see Gunzburg v Gunzburg, 152 ...


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