Opinion
June 26, 1995
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the appeal is dismissed, without costs and disbursements, and the order is vacated (see, Matter of Scorpio Car Serv. v. New York City Taxi Limousine Commn., 171 A.D.2d 872; CPLR 7803; 7804 [g]); and it is further,
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
Since the petition raised the issue of whether the respondent's determination was supported by substantial evidence and "other objections as could terminate the proceeding" were not raised, the Supreme Court should have transferred the proceeding to this Court without disposing of any issues (see, CPLR 7804 [g]).
Upon a de novo view of the record (see, Matter of Scorpio Car Serv. v. New York City Taxi Limousine Commn., 171 A.D.2d 872), we find the petitioner's arguments to be without merit. The respondent's decision that the petitioner "suffered or permitted" lewd and obscene acts to occur in violation of Alcoholic Beverage Control Law § 106 (6-a) and rule 36.1 (r) of the Rules of the State Liquor Authority [ 9 NYCRR 53.1 (r)] was supported by substantial evidence (Matter of Lahey v. Kelly, 71 N.Y.2d 135; Matter of Leake v. Sarafan, 35 N.Y.2d 83; Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of County of Suffolk v. Newman, 173 A.D.2d 618; Southside Pub v. New York State Liq. Auth., 143 A.D.2d 899). Further, the statute and rule violated were neither unconstitutional on their face nor as applied (see, Bellanca v New York State Liq. Auth., 54 N.Y.2d 228, cert denied 456 U.S. 1006; Matter of Becker v. New York State Liq. Auth., 21 N.Y.2d 289; Matter of 17 Fortune Corp. v. State Liq. Auth., 171 A.D.2d 748; Matter of Highway Tavern Corp. v. McLaughlin, 105 A.D.2d 122; 92-07 Rest. v. New York State Liq. Auth., 80 A.D.2d 603). Finally, the penalty imposed was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., supra, at 232).
We have considered the petitioner's remaining contentions and find them to be without merit. Rosenblatt, J.P., Ritter, Joy and Krausman, JJ., concur.