Opinion
8636.
May 30, 2006.
Determination by respondent, dated April 7, 2005, sustaining two charges of suffering or permitting gambling on the premises and imposing a $3,500 civil penalty, or, alternatively, a 25-day suspension and $1,000 bond claim, unanimously confirmed, the petition denied and this CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, New York County [Emily Jane Goodman, J.], entered July 7, 2005) dismissed, without costs.
Mehler Buscemi, New York (Martin P. Mehler of counsel), for petitioner.
Thomas G. McKeon, New York (Scott A. Weiner of counsel), for respondent.
Before: Andrias, J.P., Marlow, Sullivan, Gonzalez and Sweeny, JJ., concur.
The finding of gambling permitted on the licensed premises, in violation of Alcoholic Beverage Control Law § 106 (6), is supported by substantial evidence ( see Matter of JAJK, Inc. v. Division of Alcoholic Beverage Control, 272 AD2d 963; Matter of Bubba Rest. v. New York State Liq. Auth., 160 AD2d 539). The record also supports respondent's finding that the video game in question is a gambling device in violation of Rules of the State Liquor Authority (9 NYCRR) § 53.1 (t) ( Matter of Plato's Cave Corp. v. State Liq. Auth., 68 NY2d 791; Matter of Tom's Log Cabin v. New York State Liq. Auth., 214 AD2d 492). The penalty imposed was not so disproportionate to the offenses as to be shocking to one's sense of fairness ( Matter of Rontim Rest. v. New York State Liq. Auth., 206 AD2d 485).