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Matter of Vitagliano v. St. of N.Y. Liq. Auth

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 1989
149 A.D.2d 426 (N.Y. App. Div. 1989)

Opinion

April 3, 1989

Appeal from the Supreme Court, Nassau County (Kutner, J.).


Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Sullivan, and leave to appeal is granted by Justice Sullivan (CPLR 5701 [b] [1]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

While we find that the petitioners' violation of Alcoholic Beverage Control Law § 65 (1) is a serious offense, we agree with the Supreme Court, Nassau County, that the cancellation of their license is disproportionate to the offense under the circumstances of this case. The violation was not intentional, the petitioners were absent from the premises at the time of the violation, the offending employee was promptly discharged, and the petitioners have implemented procedures to prevent such violations (see generally, Matter of Levittown Events v. Duffy, 135 A.D.2d 539, lv denied 71 N.Y.2d 805; Matter of Vargas v. State of New York Liq. Auth., 111 A.D.2d 925). Accordingly, the imposition of a less severe penalty is appropriate (see generally, Matter of 596 Main St. Corp. v. New York State Liq. Auth., 141 A.D.2d 643; Matter of Leewood Beverage Center v. State Liq. Auth., 139 A.D.2d 649; Montero Grocery v. McLaughlin, 99 A.D.2d 769; Matter of Nycrest Corp. v. New York State Liq. Auth., 96 A.D.2d 563).

We note that our affirmance herein is not to be construed as an expression of agreement with the penalty suggested by the Supreme Court. The imposition of an appropriate penalty other than cancellation of the petitioners' license for this, the petitioners' third offense, rests within the sound discretion of the appellant. Mangano, J.P., Kooper, Sullivan and Harwood, JJ., concur.


Summaries of

Matter of Vitagliano v. St. of N.Y. Liq. Auth

Appellate Division of the Supreme Court of New York, Second Department
Apr 3, 1989
149 A.D.2d 426 (N.Y. App. Div. 1989)
Case details for

Matter of Vitagliano v. St. of N.Y. Liq. Auth

Case Details

Full title:In the Matter of THOMAS M. VITAGLIANO et al., Doing Business as 7-ELEVEN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 3, 1989

Citations

149 A.D.2d 426 (N.Y. App. Div. 1989)
539 N.Y.S.2d 770