Opinion
No. 16611 Index No. 151728/21 Case No. 2021-02363
11-03-2022
In the Matter of The Cloister East, Inc., Doing Business as Cloister Cafe et al., Petitioners-Appellants, v. The New York State Liquor Authority et al., Respondents-Respondents.
Garson, Segal, Steinmetz Fladgate LLP, New York (Robert David Garson of counsel), for appellants. Letitia James, Attorney General, New York (Blair J. Greenwald of counsel), for respondents.
Garson, Segal, Steinmetz Fladgate LLP, New York (Robert David Garson of counsel), for appellants.
Letitia James, Attorney General, New York (Blair J. Greenwald of counsel), for respondents.
Before: Acosta, P.J., Kapnick, Mazzarelli, González, Rodriguez, JJ.
Judgment, Supreme Court, New York County (Margaret A. Chan, J.), entered April 19, 2021, denying the petition to annul respondent New York State Liquor Authority's January 25, 2021 cancellation order, to enjoin respondents from enforcing the cancellation order, and for an order directing respondents to immediately reinstate petitioner The Cloister East's liquor license, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The record in this case established that petitioner Cloister East was a corporation dissolved by proclamation pursuant to Tax Law § 203-a, which had not sought reinstatement by paying its back taxes and penalties. Therefore it lacked legal capacity to bring this proceeding to annul or vacate the cancellation of its liquor license (see Business Corporation Law § 1005[a][1]; Matter of 151st St. Discount Liquors, Inc. v New York State Liq. Auth., 189 A.D.3d 426, 426 [1st Dept 2020], lv denied 37 N.Y.3d 903 [2021]; Metered Appliances, Inc. v 75 Owners Corp., 225 A.D.2d 338, 338 [1st Dept 1996]; B&O Realty Corp. v Chong-Yau Jeng, 201 A.D.2d 439, 439 [1st Dept 1994]).
Petitioners did not raise their current judicial estoppel argument before the article 78 court (see Thompson-Shepard v Lido Hall Condominiums, 168 A.D.3d 614, 614 [1st Dept 2019]). In any event, petitioners' argument is unavailing, as the record does not reflect that respondents advanced an inconsistent position in a prior action concerning Cloister East's legal capacity to commence this proceeding (see generally Becerril v City of N.Y.Dept. of Health & Mental Hygiene, 110 A.D.3d 517, 519 [1st Dept 2013], lv denied 23 N.Y.3d 905 [2014]).