| Matter of A-Plus v New York State Lottery |
| 2010 NY Slip Op 02185 [71 AD3d 1372] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of A-Plus, Licensed Lottery Agent No. 47664,Petitioner, v New York State Lottery, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, OnondagaCounty [James P. Murphy, J.], entered August 6, 2009) to review a determination of respondent.The determination revoked petitioner's Lottery Sales Agent License.
It is hereby ordered that the determination is unanimously confirmed without costs and thepetition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, toannul the determination revoking its lottery sales agent license (hereafter, lottery license). Wereject petitioner's contention that the determination is not supported by substantial evidence(see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176,180-181 [1978]). Respondent presented the testimony of two investigators at the hearing beforethe Administrative Law Judge (ALJ) concerning statements made to them by the complainingcustomer and statements to them made by petitioner's president. Although the out-of-courtstatements of that customer constituted hearsay, it is well settled that " '[h]earsay evidence [may]be the basis of an administrative determination' and, if sufficiently relevant and probative, mayalone constitute substantial evidence" (Matter of Hoch v New York State Dept. of Health, 1 AD3d 994,995 [2003]; see Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]). In addition, thestatements of petitioner's president did not constitute hearsay and provided an independent basisfor the determination. We reject the further contention of petitioner that it was denied a fairhearing because the complaining customer did not testify at the hearing. Respondent had noobligation to produce any particular witnesses in order to establish a prima facie case, andpetitioner did not request that the ALJ issue a subpoena pursuant to State AdministrativeProcedure Act § 304 (2) to compel the customer to attend the hearing.
We reject petitioner's contention that the penalty imposed was an abuse of discretion as amatter of law and thus should not be upheld (see generally Matter of Kelly v Safir, 96NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]). A lottery license may berevoked upon a determination that the agent has engaged in "conduct prejudicial to publicconfidence in the Lottery" (21 NYCRR [*2]2801.19 [a] [4];see Tax Law § 1607 [d]). Here, it cannot be said that the revocation of petitioner'slottery license " 'is so disproportionate to the offense, in the light of all the circumstances, as tobe shocking to one's sense of fairness' " (Matter of Pell v Board of Educ. of Union FreeSchool Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d222, 233 [1974]; see Matter of Verney v New York State Liq. Auth., 94 NY2d 779[1999]). Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.