Opinion
December 2, 1963
In a proceeding under article 78 of the former Civil Practice Act, to annul a determination of the New York State Liquor Authority, dated September 6, 1962, which disapproved the petitioners' application for permission to remove their package liquor store to another location, the Authority appeals from a final order of the Supreme Court, Nassau County, entered April 19, 1963: (1) annulling such determination; and (2) directing the Authority to grant such approval. Order reversed, on the law, and petition dismissed, without costs. To obtain permission for the removal of a package store to another location, it must appear that the public convenience and advantage at the existing location will be served by such removal. The Authority found that there would not be a sufficient number of liquor stores in the old location if its permission for removal were to be granted and that the public convenience and advantage would not be served by the proposed removal of the liquor store. In our opinion, there is sufficient evidence in the record to sustain such a finding. Where there is such evidence the discretion to make the finding is vested in the Authority. On this record, it cannot be said that the Authority acted in an arbitrary or capricious manner and, hence, the court cannot annul its determination ( Matter of Rockower v. State Liq. Auth., 4 N.Y.2d 128; Matter of Lenward Liq. Corp. v. New York State Liq. Auth., 19 A.D.2d 612). Ughetta, Acting P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur. [ 38 Misc.2d 976.]