47 Misc. 2d 1091 | N.Y. Sup. Ct. | 1965
This petition seeks to have annulled the determination of the State Liquor Authority to issue licenses for three package stores in Mattituck, where petitioner presently operates his package store. The Authority and each of the three licensees ask dismissal of the petition, the argument being that except as to licenses issued in violation of a legislative mandate, there can be no review of the issuance by the Authority of a license. The language of sections 2 and 121 of the Alcoholic Beverage Control Law suggests that the proceeding authorized by section 123 was not intended as a means of reviewing the exercise of discretion by the Authority to issue a license (Matter of J. R. Liquors v. State Liq. Auth., 46 Misc 2d 867; Matter of Green v. New York State Liq. Auth., N. Y. L. J., June 10, 1965, p. 19, col. 4), as distinct from issuance of a license without giving consideration to public convenience and advantage (see Matter of McNulty v. New York State Liq. Auth., N. Y. L. J., April 26, 1965, p. 19, col. 7, affd. 24 A D 2d 599) or in violation of the numerical limitation of former subdivision 4 of section 105 (Matter of O’Brien v. Rozza, 247 App. Div. 747, affd. 271 N. Y. 545) or the distance mandate of subdivision 3 of section 105 (see Matter of Green, supra). It is not necessary to reach a conclusion on the question in this proceeding, however, for, except as to the distance of respondent Kelsey’s premises from a church, the allegations of the present petition do not state a cause of action.
Whether we are dealing with abuse of discretion or failure to exercise discretion at all, it is nonetheless essential that the allegations be factual rather than conclusory (Walsh v. New York State Liq. Auth., 23 A D 2d 876, affd. 16 N Y 2d 781; Matter of
The Authority has presented, with its motion to dismiss, an affidavit of its chairman stating in conclusory fashion that it “ determined that public convenience and advantage would be promoted by the approval thereof ”. It may be, however, that on examination of the files on the applications of the licensee respondents, petitioner will find basis for attack not on the Authority’s general policy but on its action in the particular case. To afford petitioner that opportunity, leave to replead will be granted.
With respect to the Kelsey license, paragraph 7 of the petition alleges that the store is within 200 feet of the Mattituek Presbyterian Church. No mention of the contention was made on the argument and since the allegation is on information and belief, it may be that petitioner is now satisfied that it cannot be factually supported. The petition, however, sufficiently alleges a cause under section 123 in that respect. The Kelsey answer denies the allegation and thus presents a triable issue of fact. That issue will be heard in Trial Term, Part IV on Friday,
. Settle order on one day’s notice, by notice of settlement returnable not later than Friday, September 24, 1965 at 9:30 a.m., dismissing the petition, except as to the Kelsey license, and setting the matter for hearing as aboye provided on the issue of the distance of the Kelsey store from the Mattituck Presbyterian Church.