Opinion
December 20, 1971
Proceeding pursuant to article 78 of the CPLR to annul respondent's determination made on January 26, 1971, which (1) found that petitioner had suffered or permitted gambling on his licensed premises on one occasion and (2) imposed the penalty of a demand for $1,000 on his surety bond and a 10-day deferred suspension of his license. Petition granted to the extent that the determination is modified, on the law, by adding a provision that deferment of penalty is granted as to the bond demand as well as to the suspension. As so modified, determination confirmed, without costs. In our opinion, the penalty imposed was an abuse of discretion to the extent indicated herein. Rabin, P.J., Munder, Latham and Shapiro, JJ., concur; Martuscello, J., dissents and votes to annul the determination, with the following memorandum: In my opinion, the evidence was too insubstantial to sustain the charge that petitioner had suffered or permitted gambling on the premises in violation of subdivision 6 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law ( Matter of 205 Linden Rest. Corp. v. New York State Liq. Auth., 29 A.D.2d 890; Matter of Stevensville Lake Holding Corp. v. O'Connell, 269 App. Div. 804).