Opinion
CA 02-01068
December 30, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Onondaga County (Murphy, J.), entered July 25, 2001, which dismissed the CPLR article 78 petition.
HARRIS PANELS, SYRACUSE (MICHAEL W. HARRIS OF COUNSEL), FOR PETITIONER-APPELLANT.
THOMAS J. DONOHUE, ALBANY, FOR RESPONDENT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HAYES, HURLBUTT, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner seeks to annul respondent's determination denying its application to remove its existing on-premises liquor license to another location. We reject at the outset respondent's contention that this appeal is moot because petitioner may be unable to obtain a lease for the proposed new location ( see generally Rob Tess Rest. Corp. v. New York State Liq. Auth., 68 A.D.2d 821, mod on rearg 69 A.D.2d 798, mod on other grounds 49 N.Y.2d 874). That contention is not supported by the record.
We conclude, however, that Supreme Court properly dismissed the petition. In its application, petitioner admits that the proposed new location is within a 500-foot radius of three or more establishments selling liquor to the public for on-premises consumption ( see Alcoholic Beverage Control Law § 64 [b]). Petitioner therefore will not be heard to contend that paragraphs (b) and (f) of section 64(7) do not apply to its application. We reject petitioner's further contention that the determination is arbitrary and capricious and an abuse of discretion. The standard of review for a denial of a liquor license application is whether the administrative determination has a rational basis ( see Matter of Hayes v. New York State Liq. Auth., 39 A.D.2d 482, 484; see also Matter of Rockower v. State Liq. Auth., 4 N.Y.2d 128, 131; Matter of Fredette v. Hostetter, 36 A.D.2d 891; Matter of Rochester Colony v. Hostetter, 19 A.D.2d 250, 253). Upon our review of the record, we further conclude that respondent properly considered all of the factors set forth in section 64 (6-a) and based its determination upon facts that were properly before it. Respondent's determination is therefore not arbitrary and capricious, nor is it an abuse of discretion ( see Rochester Colony, 19 A.D.2d at 253; see generally Matter of Mularz v. State Liq. Auth. of State of N.Y., 20 A.D.2d 65, 66).