Opinion
March 28, 1974
Proceeding pursuant to CPLR article 78 (transferred to the Appellant Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Sullivan County) to review determinations by respondent which canceled and recalled petitioner's on-premises liquor license and imposed a claim against petitioner's bond in the amount of $500. Respondent authority initiated revocation proceedings upon specifications charging violations of subdivision 1 of section 65 and subdivision 6 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law, as well as a violation of subdivision (n) of section 53.1 of the Rules of the State Liquor Authority ( 9 NYCRR 53.1 [n]). Petitioner contends that respondent's determination was not supported by substantial evidence and that the penalty was excessive and unduly disproportionate. While there is substantial evidence to support the respondent's determination, careful review of this record and giving consideration to all of the circumstances, including the punitive action by the Authority against petitioner's off-premises license, we conclude that the penalty imposed here was excessive. Exercising the vested power of the court (see Matter of Mitthauer v. Patterson, 8 N.Y.2d 37), we conclude that a six-month suspension is fair and adequate and, accordingly, so reduce the penalty. Determinations modified to the extent of annulling the cancellation and recall of petitioner's on-premises license and substituting therefor a provision that the license be suspended for a period of six months, and, as so modified, confirmed, without costs. Herlihy, P.J., Greenblott, Cooke, Sweeney and Main, JJ., concur.