Opinion
March 3, 1958
This proceeding pursuant to article 78 of the Civil Practice Act to review a determination of the State Liquor Authority suspending petitioner's restaurant liquor license has been transferred to this court (Civ. Prac. Act, § 1296). The license was suspended on findings that petitioner had violated subdivision 6 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law "in that he suffered or permitted a patron to be assaulted therein." Determination annulled, without costs. The suspension was based on a single assault by petitioner's bartender committed at a time when petitioner was not present. This was insufficient to sustain the charge that petitioner had suffered or permitted the licensed premises to become disorderly ( Matter of Brody v. Rohan, 1 A.D.2d 661; Matter of Migliaccio v. O'Connell, 307 N.Y. 566). Nor was the evidence in any way sufficient to justify a finding that petitioner acquiesced in the assault ( Matter of Stanwood United v. O'Connell, 283 App. Div. 79, affd. 306 N.Y. 749). Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.