In the Matter of Stanley Waxenberg, Doing Business as Tulip Liquors, Petitioner, v. New York State Liquor Authority, Respondent

In the Matter of Stanley Waxenberg, Doing Business as Tulip Liquors, Petitioner, v. New York State Liquor Authority, Respondent. [MAJORITY] Proceeding pursuant to article 78 of the CPLR to annul respondent’s determination, dated March 16, 1972, which, after a hearing, suspended petitioner’s retail liquor store license for 10 days, with the suspension temporarily deferred. Petition granted and determination annulled, on the law, without costs, and matter remitted to respondent for a new hearing and further proceedings not inconsistent with the views set forth herein. Petitioner was charged with having sold liquor to a minor actually or apparently under the age of 18 years, in violation of section 65 of the Alcoholic Beverage Control Law. In a bill of particulars furnished to petitioner, respondent named one Kevin Minogue as the minor to whom the liquor had been sold. At the hearing, respondent sought to prove that the sale had been made to one Dennis Lipps. Minogue did not testify and no attempt was made by respondent to amend its bill of particulars. In our opinion, respondent was bound by its bill of particulars until amended. A new hearing is therefore required. Hopkins, Acting P. J., Munder, Shapiro, Gulotta and Benjamin, JJ., concur.