Opinion
January 14, 1971
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court, Third Judicial Department by order of the Supreme Court, Albany County) to review a determination of the Commissioner of Agriculture and Markets, which ordered decharacterization of 43,900 pounds of shortening manufactured by petitioner to render it unfit for human consumption (Agriculture and Markets Law, art. 5-B) and assessed a penalty of $2,500 against petitioner for alleged violation of the Agriculture and Markets Law (Agriculture and Markets Law, § 39). On December 29, 1969 petitioner, a processor of animal and vegetable shortening, received a shipment of uninspected shortening which was unloaded from a truck, placed in a storage tank, packaged and labeled as pure vegetable shortening. Subsequent analysis of samples of the shortening produced abundant and uncontroverted evidence that the shortening contained a percentage of animal fat. Thus, notwithstanding petitioner's purported good faith and the alleged wholesomeness of the product, since the meat product in the shortening was unquestionably not inspected, the shortening was adulterated (see Agriculture and Markets Law, § 96-q) and also mislabeled, it was therefore properly determined unfit for human consumption in accordance with article 5-B of the Agriculture and Markets Law. As to the penalty assessed by the Commissioner, we do not consider the merits of petitioner's arguments because the assessment is not self-executing and hence is at this juncture nonfinal. Assessment cannot occur until the Commissioner, in accordance with section 44 Agric. Mkts. of the Agriculture and Markets Law, turns the matter over to the Attorney-General who has the power to release, settle or compromise the action "either before or after an action is brought to recover such penalties." (Agriculture and Markets Law, § 39.) Accordingly, the assessment is not reviewable in this proceeding (CPLR 7801; Matter of Beck v. Ten Eyck, 162 Misc. 5). Determination, insofar as it directed that the shortening be rendered unfit for human consumption, confirmed, and petition dismissed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.