Marracino v. State Liquor Authority

— Determination unanimously annulled, on the law, without costs, and petition granted. Memorandum: Upon review of the record, we find that respondent’s determination is not supported by substantial evidence. "A court reviewing the substantiality of the evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such an agency (Matter of McCormack v National City Bank, 303 NY 5, 8-9). In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically [citations omitted]” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181). Respondent relied on the very brief testimony of the minor who allegedly purchased the liquor at petitioner’s store. That testimony was refuted by the testimony of petitioner and two employees and by an affidavit of the wife of one of the employees. That proof established that the bearded employee who allegedly made the sale never worked at the store on Saturday nights. While we would ordinarily defer to the agency’s determination of credibility of witnesses, on this record the minor’s testimony does not constitute substantial evidence. (Article 78 proceeding transferred by order of Supreme Court, Erie County, Gossel, J.) Present — Dillon, P. J., Callahan, Denman, Green and Pine, JJ.