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Charlotte's Fancy Restaurant, Inc. v. City of New York

69 N.Y.2d 865 Court N.Y. Decision date 1987-03-26 English

Contents

Majority

p. 865
In the Matter of Charlotte’s Fancy Restaurant, Inc., Doing Business as Waverly & Waverly, Respondent, v City of New York, Department of Consumer Affairs, Appellant.
Argued February 12, 1987;
decided March 26, 1987
p. 866
APPEARANCES OF COUNSEL
Frederick A. O. Schwarz, Jr., Corporation Counsel (Elizabeth Dvorkin and June A. Witterschein of counsel), for appellant.
Charles J. Carreras for respondent.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed.

p. 867
The majority at the Appellate Division properly construed the provision at issue, section B32-297.0 of the Administrative Code of the City of New York. In this context, the court’s review is limited to whether there was substantial evidence in the record to support the Department of Consumer Affairs’ determination that petitioner operated an unlicensed cabaret (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176 ), and we conclude that there was.

Accordingly, we reverse the judgment, without costs, and remit the proceeding to the Supreme Court for remand to the Department of Consumer Affairs for further proceedings with respect to the fine imposed, which the appellate City concedes it is not appealing and must be redetermined.

We note that shortly after the commencement of these proceedings, the respondent restaurant ceased operations and went out of business; indeed, we had no brief or appearance in this court by that party. Moreover, the Administrative Code provision at issue has been changed. While these developments do not render the appeal technically moot, pursuit of the City’s appeal to this court in these circumstances is unfortunate and warrants the denial of costs.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Judgment reversed, without costs, and matter remitted to Supreme Court, New York County, for remand to the Department of Consumer Affairs for further proceedings in accordance with the memorandum herein.

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