Opinion
June 13, 1972
Determination of the State Liquor Authority, dated November 17, 1971, suspending petitioner's solicitor's permit for a period of 35 days (suspension deferred) and imposing a $500 bond claim, unanimously annulled, on the law, without costs and without disbursements. The statement of the owner of the retail license was completely repudiated by him at the hearing before the State Liquor Authority and his testimony at that hearing that petitioner did not offer him free goods and that he never received any from petitioner, is otherwise unrefuted. The prior contradictory statement could be received for the purpose of impeachment only and not as a substitute for the oral testimony given at the hearing by the same person. "As hearsay, such statements, standing alone, lack competency and sufficient probative force to sustain material findings or a determination required to be supported by substantial evidence. [Citing authorities.] Moreover, hearsay evidence may not be used by an administrative tribunal or officer in such a manner as to deprive a party of the right to a fair hearing where that right is guaranteed by law. Such right would be illusory if the administrative tribunal or officer could ground its determination on investigatory data and hearsay evidence." ( Matter of Erdman v. Ingraham, 28 A.D.2d 5, 7-8; see, also, Matter of Altschuller v. Bressler, 289 N.Y. 463.)
Concur — Stevens, P.J., McGivern, Murphy, Steuer and Capozzoli, JJ.