Opinion
5675 Index 102016/15
02-08-2018
In re EMPIRE STATE BEER DISTRIBUTORS ASSOCIATION, INC., et al., Petitioners–Respondents, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent–Appellant, Costco Wholesale Corporation, et al., Respondents–Intervenors–Appellants.
Christopher R. Riano, Albany (Mark D. Frering of counsel), for New York State Liquor Authority, appellant. Nolan & Heller, LLP, Albany (Richard L. Burstein of counsel), for Costco Wholesale Corporation and BJ's Wholesale Club, Inc., appellants. Gerstman Schwartz & Malito, LLP, Garden City (Ian–Paul A. Poulos of counsel), for respondents.
Christopher R. Riano, Albany (Mark D. Frering of counsel), for New York State Liquor Authority, appellant.
Nolan & Heller, LLP, Albany (Richard L. Burstein of counsel), for Costco Wholesale Corporation and BJ's Wholesale Club, Inc., appellants.
Gerstman Schwartz & Malito, LLP, Garden City (Ian–Paul A. Poulos of counsel), for respondents.
Friedman, J.P., Sweeny, Kahn, Gesmer, Singh, JJ.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered October 3, 2016, granting the petition to the extent of directing respondent New York State Liquor Authority (N.Y.SLA) to disclose unredacted copies of stipulations entered into between NYSLA and respondents-intervenors Costco Wholesale Corporation and BJ's Wholesale Club, Inc., requested by petitioners pursuant to the Freedom of Information Law (FOIL), unanimously reversed, on the law, without costs, the petition denied, and the proceeding brought pursuant to CPLR article 78, dismissed.
NYSLA's determination denying petitioner's FOIL request was not "affected by an error of law" ( CPLR 7803[3] ; see Mulgrew v. Board of Educ. of the City School Dist. of the City of N.Y., 87 A.D.3d 506, 928 N.Y.S.2d 701 [1st Dept. 2011], lv denied 18 N.Y.3d 806, 2012 WL 446222 [2012] ). Respondents met their burden of establishing that disclosure of the redacted portions of NYSLA's separate stipulations with the two intervenors "would cause substantial injury to the competitive position of the subject enterprise[s]" ( Public Officers Law § 87[2][d] ). Although NYSLA's promise to keep the stipulations confidential does not automatically exempt them from FOIL (see Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 567, 475 N.Y.S.2d 263, 463 N.E.2d 604 [1984] ), under the particular circumstances of this case, disclosing the stipulation terms at issue, would likely deter some customers from patronizing those stores, leading to economic loss (see Matter of New York State Elec. & Gas Corp. v. New York State Energy Planning Bd., 221 A.D.2d 121, 125, 645 N.Y.S.2d 145 [3d Dept. 1996], appeal withdrawn 89 N.Y.2d 1031, 658 N.Y.S.2d 246, 680 N.E.2d 620 [1997] ). Contrary to petitioners' argument, intervenors met their burden of presenting "specific, persuasive evidence that disclosure will cause [them] to suffer a competitive injury," and did not "merelyrest on a speculative conclusion that disclosure might potentially cause harm" by leading to negative publicity (Matter of Markowitz v. Serio, 11 N.Y.3d 43, 51, 862 N.Y.S.2d 833, 893 N.E.2d 110 [2008] ).