Opinion
February 28, 1975
Proceeding pursuant to CPLR article 78 to review respondent's determination, dated September 24, 1973, which disapproved petitioner's application for a special on-premises liquor license. Determination annulled, on the law, with $20 costs and disbursements, and respondent is directed to issue the license forthwith. Alfred E. Sherman, the sole principal of the petitioner, now 63 years old, had achieved the position of vice-president and general manager of a major distributor of foreign automobiles. His employment terminated in 1973 after 17 years when the manufacturer decided to distribute its cars under its own aegis. Mr. Sherman has not been employed since that time. Petitioner's application for a special on-premises liquor license at 6 St. Paul's Avenue, Staten Island, was denied by respondent on the ground of inexperience, insufficient proof of the source of the investment funds and insufficient proof that Mr. Sherman was the sole person interested in the business. Petitioner's landlord, William Antico, is Mr. Sherman's father-in-law. Mr. Antico had been the principal of a corporation at another location whose liquor license was canceled for concealment of employment of a felon, Mr. Antico's possession of firearms and his promotion of gambling. Mr. Antico had then unsuccessfully applied for removal to the instant premises. As indicated in the local board's notice of recommendation of disapproval herein, the deputy commissioner's memorandum and respondent's notice of disapproval, Mr. Antico's history was the major reason for the disapproval of petitioner's application, despite Mr. Sherman's unblemished and successful career. The record shows that Mr. Antico had unsuccessfully attempted to sell the entire premises (consisting of two apartments and a store) and to rent the store. Mr. Antico asserted that he is still desirous of selling the premises. There is nothing in the record to indicate that he will have any interest in the proposed business, other than as landlord. In the light of Mr. Sherman's background, his age and his limited opportunities in the field in which he was so long employed, we conclude that there was no reasonable basis for respondent's conclusion that the application was a subterfuge for Mr. Antico's participation in the proposed business ( Matter of 2268 Tavern Corp. v. New York State Liq. Auth., 41 A.D.2d 826). Nor do we believe that the denial was justified by Mr. Sherman's lack of experience in the proposed business in view of his broad managerial background and the extensive tavern experience of his proposed manager. The entire investment required by petitioner was $6,000. In December, 1972, some six months prior to the application, Mr. Sherman received a year-end bonus of $6,030 which was deposited into his checking account. Although there were three additional deposits thereafter, totaling $8,723, whose source is not verified (Mr. Sherman averred these latter amounts were earned from buying and selling cars), the verified deposit of $6,030, plus his substantial fixed assets, was more than sufficient to finance the venture. There is nothing to indicate that Mr. Antico was the source of these additional and unnecessary deposits. Hopkins, Acting P.J., Latham, Christ and Shapiro, JJ., concur.