Matter of Radigan v. O'Connell

Per Curiam. We agree with the Appellate Division that there is no substantial evidence to support the determination of the State Liquor Authority that the licensee has ceased to conduct a bona fide restaurant in violation of section 118 of *399 the Alcoholic Beverage Control Law. Under our view of the record, there is substantial evidence to support the determination of the State Liquor Authority that the licensee suffered or permitted the sale of an alcoholic beverage to an intoxicated person in violation of section 65 of the Alcoholic Beverage Control Law (Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150). The court may not substitute its judgment for that of the Liquor Authority on a controverted question of fact (Matter of Stork Restaurant v. Boland, 282 N. Y. 256). It is when the circumstances admit of only one inference that the court may decide as a matter of law what inference should be drawn (Matter of Rumsey Mfg. Co. [Corsi], 296 N. Y. 113; Matter of Bolani v. O’Connell, 296 N. Y. 871; Matter of Menick v. Bruckman, 279 N. Y. 795, revg. 255 App. Div. 810). The order of the Appellate Division should be affirmed insofar as it reverses and annuls the determination of the State Liquor Authority that the licensee has ceased to conduct a bona fide restaurant (Alcoholic Beverage Control Law, § 118), and should be reversed insofar as it annuls the determination of the State Liquor Authority that the licensee suffered or permitted the sale of an alcoholic beverage to an intoxicated person (Alcoholic Beverage Control Law, § 65), and the determination of the State Liquor Authority should be reinstated as to that charge. It is further ordered that the matter be and it hereby is remitted to the State Liquor Authority for the purpose of fixing the penalty, if any, for such single offense. The order of the Appellate Division should be modified in accordance with the opinion herein, and, as so modified, affirmed. Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur; Conway, J., not sitting. Ordered accordingly.