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Matter of Elmarth Bar Grill v. St. Liquor Authority

Court of Appeals of the State of New York
May 5, 1981
422 N.E.2d 826 (N.Y. 1981)

Opinion

Argued March 23, 1981

Decided May 5, 1981

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.

Stephen D. Kalinsky and Warren B. Pesetsky for appellant.

Eugene V. Natale for respondent.


MEMORANDUM.

The judgment should be reversed, with costs, and determination of the State Liquor Authority reinstated.

Inasmuch as the express factual finding made by the hearing officer, that the interdicted consumption of alcohol had taken place, would not be sufficient standing alone to support a violation of subdivision 5 of section 106, the question before us is whether the hearing officer found the second element, actual or constructive knowledge by the licensee's principal or by another in authority. Here, however, the evidence of knowledge, an admission by the president of the licensee corporation that the employee was "having a drink after work", not only went uncontradicted but the hearing officer expressly found the witness through whom it was introduced to be credible. Therefore, although a formal finding to that effect would have been preferable, we nevertheless may regard the second element as having been imported into the conclusionary finding that the charge was sustained.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Judgment reversed, etc.


Summaries of

Matter of Elmarth Bar Grill v. St. Liquor Authority

Court of Appeals of the State of New York
May 5, 1981
422 N.E.2d 826 (N.Y. 1981)
Case details for

Matter of Elmarth Bar Grill v. St. Liquor Authority

Case Details

Full title:In the Matter of ELMARTH BAR GRILL, INC., Respondent, v. STATE LIQUOR…

Court:Court of Appeals of the State of New York

Date published: May 5, 1981

Citations

422 N.E.2d 826 (N.Y. 1981)
422 N.E.2d 826
440 N.Y.S.2d 181

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