Opinion
February 27, 1967
Proceeding pursuant to CPLR article 78 to annul a determination of respondent State Liquor Authority which disapproved petitioner's application for a retail liquor store license. The proceeding has been transferred to this court for disposition. Determination annulled, without costs, and matter remitted to respondent for the purpose of holding a hearing, in accordance with the memorandum herewith, and making a determination de novo. In our opinion, it is clear from the record presented that petitioner's application was disapproved because the premises were within 200 feet of a school and thus were barred by subdivision 3 of section 105 Alco. Bev. Cont. of the Alcoholic Beverage Control Law. However, the premises are not on the same street or avenue as the school and the mandatory prohibition of the statute is inapplicable ( Matter of Cup Saucer Cottage Rest. v. New York State Liq. Auth., 19 A.D.2d 597, affd. 13 N.Y.2d 1050; Matter of Surface Line Operators Fraternal Organization v. New York State Liq. Auth., 25 A.D.2d 775, mot. for lv. to app. den. 17 N.Y.2d 425). It is our opinion, accordingly, that on this record the matter should be remitted to the Authority for the purpose of holding a hearing on the question whether public convenience and advantage would not be served by the approval of petitioner's application. Motion by petitioner to strike certain paragraphs from respondent's answer, together with certain exhibits annexed thereto, insofar as it was transferred to this court, denied, without costs (cf. Matter of Collins v. Behan, 285 N.Y. 187; Matter of Miller v. McGovern, 283 App. Div. 575). Ughetta, Acting P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.