Opinion
August 23, 1990
Appeal from the Supreme Court, New York County (Stanley L. Sklar, J.).
Respondent had imposed a penalty of a 20-day (5 remitted) license suspension plus a $1,000 bond forfeiture in connection with two charges stemming out of possession of a Joker Poker machine, after petitioner had pleaded "no contest" to the first and a hearing was held on the second. The IAS court found that petitioner had been impermissibly penalized twice, that no explanation was given for failure to grant a good-record deferment, and that the dual penalty was excessive.
Contrary to respondent's contentions, the court properly found the penalty to be arbitrary, capricious and an abuse of discretion (Matter of Pell v Board of Educ., 34 N.Y.2d 222). There was no showing of a separate and distinct violation, as petitioner had conceded to possession and maintenance of the machine in charge No. 1 (see, Matter of Plato's Cave Corp. v State Liq. Auth., 68 N.Y.2d 791). Respondent had also failed to set forth reasons why a good-faith deferral was not granted as in similar proceedings (Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516). Finally, the imposition of both a license suspension and a bond forfeiture has been held to be excessive under similar circumstances (Matter of MNDN Rest. v Gazzara, 128 A.D.2d 781, lv denied 70 N.Y.2d 603; Matter of Popper's Delicacies v State Liq. Auth., 98 A.D.2d 601, lv denied 61 N.Y.2d 606).
The order of this court entered herein on March 27, 1990 [ 159 A.D.2d 420] is recalled and vacated.
Concur — Ross, J.P., Carro, Asch and Rubin, JJ.