Opinion
June 20, 1967
Article 78 proceedings (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by an order of the Supreme Court at Special Term, entered in Albany County) to review and annul determinations of respondent, as Commissioner of Agriculture and Markets, denying petitioners' applications for extensions of the milk dealer's licenses held by them. Petitioners are holders of Class "C" licenses issued by the State of New York, to deliver milk in the City of New York. These licenses were limited to the purchase of milk from Grandview Dairy, Inc., and permit them to operate one retail milk route; Testa in the County of Queens and Brucato in the County of Kings. They also held Class "C" licenses (containing similar restrictions) from the City of New York. Desiring to extend their routes and to sell to other dealers, they applied for and received from the city, Class "B" licenses which would authorize them to so expand. They then made applications for Class "B" licenses from the State. Hearings were conducted before a representative of the Commissioner of Agriculture and Markets, at the conclusion of which findings and decisions were made by the Commissioner in which he denied the applications, holding that the areas proposed to be served by petitioners were already adequately served; that the competition in these areas was very keen with dealers making little profit; that the extensions requested would tend to produce destructive competition in the area; and, finally, that the extensions would not be in the public interest. The Commissioner's determinations were made upon ample evidence which satisfied the statutory requirement that his findings must rest and be based upon a preponderance of the evidence (Agriculture and Markets Law, § 258-c). The evidence clearly showed that the milk price structure in the areas to be served was chaotic with the price of retail delivered milk on a general downtrend, created by the need to compete with other and cheaper forms of distribution such as milk stores, vending machines and chain-store super markets. The record further discloses that the volume of home delivery was decreasing while the operating costs were increasing and, further, that the market was presently adequately served by existing dealers whose income had been decreasing for all of the foregoing reasons. Not only does it appear that there would be a tendency toward destructive competition, but that on the question as to whether the market was adequately served, the record substantiates the Commissioner's determination by a preponderance of the evidence (Agriculture and Markets Law, § 258-c). In these circumstances, the determinations thus made cannot be disturbed ( Matter of Kotcher v. Carey, 3 A.D.2d 957; Matter of Ginsburg v. Carey, 2 A.D.2d 733; Matter of Grimsteed v. Carey, 1 A.D.2d 985). We find no merit in petitioners' contentions that the determinations were influenced by factors which did not constitute statutory grounds for denial and that the administrative proceeding was conducted in an arbitrary and prejudicial manner and without due process of law, or that the denials perpetuate monopolistic domination of the industry. (See Matter of Williams v. Du Mond, 282 App. Div. 76.) Determinations confirmed, without costs. Gibson, P.J., Reynolds, Auilisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.