Opinion
2012-12-27
In re 7TH AVENUE RESTAURANT GROUP LLC, Petitioner–Appellant, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent–Respondent.
Mehler & Buscemi, New York (Martin P. Mehler of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York (Won S. Shin of counsel), for respondent.
Mehler & Buscemi, New York (Martin P. Mehler of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York (Won S. Shin of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, ROMÁN, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 10, 2012, denying the petition to annul the determination of respondent New York State Liquor Authority, dated November 16, 2011, which denied petitioner'sapplication to renew its on-premises liquor license, and dismissing this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The State Liquor Authority's determination to deny petitioner's application to renew its on-premises liquor license has a rational basis ( see Matter of Farina v. State Liq. Auth., 20 N.Y.2d 484, 491, 285 N.Y.S.2d 44, 231 N.E.2d 748 [1967];see also Cromwell, Inc. v. Hoffman, 283 A.D.2d 333, 334, 724 N.Y.S.2d 420 [1st Dept.2001] ). The record reflects that after a change of ownership in 2009, petitioner adopted a new trade name, renovated the premises, extended its hours from 2:00 a.m. to 4:00 a.m. and began playing loud music, causing its neighbors to register dozens of noise complaints. The State Liquor Authority received complaints from petitioner's landlord, the local community board and numerous concerned citizens and reviewed notices of violation issued by the New York City Buildings, Police and Fire Departments to petitioner for, among other things, operating an “illegal cabaret” without a license. Since petitioner was only licensed to serve liquor under a “restaurant” license ( seeAlcoholic Beverage Control Law § 64), respondent's determination to deny its renewal application was “not arbitrary and capricious” ( see Rose Group Park Ave. LLC v. New York State Liq. Auth., 93 A.D.3d 1, 3, 939 N.Y.S.2d 298 [1st Dept.2012],lv. denied18 N.Y.3d 953, 944 N.Y.S.2d 474, 967 N.E.2d 699 [2012] ).
The agency did not exceed its statutory authority in adopting 9 NYCRR § 48.8(a), as the rule is not “out of harmony with the [licensing] statute[s]” ( see Matter of Metro. Movers Assn., Inc. v. Liu, 95 A.D.3d 596, 600, 944 N.Y.S.2d 529 [1st Dept.2012], quoting Matter of Jones v. Berman, 37 N.Y.2d 42, 53, 371 N.Y.S.2d 422, 332 N.E.2d 303 [1975] ).
We have considered petitioner's remaining contentions and find them unavailing.