Captain Kidd's, Inc. v. New York State Liquor Authority

Mar 5, 1998
Versions:248 A.D.2d 791
669 N.Y.S.2d 721
1998 N.Y. App. Div. LEXIS 2234
—White, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent which, inter alia, suspended petitioner’s liquor license.

*792Following a raid on a bar operated by petitioner in the Town of Catskill, Greene County, Aimee Keifer and Jennifer Ioffredo were charged with unlawfully possessing an alcoholic beverage with intent to consume such beverage while being under the age of 21 years. Thereafter, respondent served a notice of pleading upon petitioner directing it to appear and plead to the charge of violating Alcoholic Beverage Control Law § 65 (1). At the conclusion of the ensuing administrative hearing at which Keifer testified on behalf of respondent, the Administrative Law Judge sustained the charge. Respondent, in turn, sustained the charge and imposed, inter alia, a $3,500 civil penalty. Petitioner challenges respondent’s action in this CPLR article 78 proceeding.

CPLR 7804 (e) directs a respondent to file a certified transcript of the record of the proceeding being challenged with its answer. In this instance, the transcript respondent filed does not contain Keifer’s direct examination. Unless omissions and gaps in a transcript do not preclude significant review of the case, it has been held that it is error to review a matter based on an incomplete record (see, Matter of Petty v Sullivan, 131 AD2d 762; Matter of Dupree v Scully, 100 AD2d 966; compare, Matter of Fama v Mann, 196 AD2d 919, Iv denied 82 NY2d 662). Here, the absence of Keifer’s direct testimony prevents us from reviewing a significant portion of the proof respondent adduced in support of the charge it levied against petitioner. Under such circumstances, it would be inappropriate for us to proceed. Therefore, we shall withhold our decision and direct respondent to file the transcript of Keifer’s direct testimony within 45 days of the date of this decision (see, CPLR 7804 [e]). We would note that the submission of the audiotape of the hearing is not in compliance with CPLR 7804 (e).

Cardona, P. J., Crew III, Yesawich Jr. and Spain, JJ., concur.

Adjudged that the decision is withheld, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.