| Matter of Putnam Cos. v Shah |
| 2012 NY Slip Op 02212 [93 AD3d 1315] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Putnam Companies, Doing Business as AcornMarkets, Inc., Petitioner, v Nirav R. Shah, M.D., et al., Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady 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, SteubenCounty [Marianne Furfure, A.J.], entered September 2, 2011) to review a determination ofrespondent. The determination, among other things, adjudged that petitioner violated PublicHealth Law § 1399-cc (2).
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 to annul thedetermination that a clerk in one of its stores sold cigarettes to a person under the age of 18 inviolation of Public Health Law § 1399-cc (2) and that petitioner's registration to sellcigarettes and lottery tickets must be suspended for six months. The sale was made to a minoremployed by respondent, and the transaction was supervised and observed by one of respondent'sinvestigators. We note at the outset that Supreme Court should have transferred the entireproceeding to this Court, rather than disposing of petitioner's contention that it was deprived ofdue process when the Administrative Law Judge (ALJ) refused to compel the minor whopurchased the cigarettes to testify at the hearing (see CPLR 7804 [g]). In cases in which asubstantial evidence issue is raised, the court must dispose of "such other objections [in point oflaw] as could terminate the proceeding" (id.). "[A]n 'objection in point of law' is oneraised either by respondent in the answer or by petitioner in response to 'new matter contained inthe answer' " (Matter of Hoch v NewYork State Dept. of Health, 1 AD3d 994, 994 [2003]; see also Matter of G & GShops v New York City Loft Bd., 193 AD2d 405, 405 [1993]). Here, petitioner's due processcontention does not fall into either of those categories.
In any event, reviewing the matter de novo (see Hoch, 1 AD3d at 995), we concludethat the ALJ's refusal to compel the minor to testify did not violate petitioner's right to dueprocess. The right to cross-examine witnesses in an administrative proceeding is a limited one(see Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]), and "[t]he ALJ properlydetermined that cross-examination [of the minor] in this instance was neither necessary norrequired" (Matter of [*2]Friendly Convenience, Inc. v New York City Dept. of ConsumerAffairs, 71 AD3d 577, 577 [2010]). We further conclude that the determination issupported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d 176, 181-182 [1978]). The investigator who observed the sale ofcigarettes to the minor testified at the hearing that she was standing directly behind the minorwhen she requested and paid for the cigarettes, and the investigator verified the age of the minorthrough her driver's license and birth certificate, copies of which were admitted in evidence (see Matter of Genovese Drug Stores, Inc. vHarper, 49 AD3d 735, 735-736 [2008]; cf. Hoch, 1 AD3d at 995). In addition,respondent produced documentary evidence that petitioner had violated Public Health Law§ 1399-cc (2) once before in the previous 36 months, and the director of retail centers forpetitioner testified at the hearing that its employees had not completed a "state certified tobaccosales training program" (§ 1399-ee [3] [a]). The documents and testimony constitutedsubstantial evidence supporting the determination that petitioner had accumulated "three pointsor more" on its record, requiring a six-month suspension of petitioner's registration to sellcigarettes and lottery tickets (§ 1399-ee [3] [e]). Present—Centra, J.P., Carni,Lindley, Sconiers and Martoche, JJ.