Vancouver Drive Restaurant, Inc. v. Board of Trustees , 33 N.Y.2d 580 ( 1973 )

Memorandum.

The order of the Appellate Division must be modified. The determination in that court was predicated solely on the disposition of a prior application for a cabaret license with reference to the same premises. Such reliance was not justified, however, since the prior application was by a former owner, unrelated to the present applicant, and sought a cabaret license under conditions and on terms significantly different from those proposed in the present application.

We agree with the conclusion of Special Term that the denial of the present application must be vacated. The village board apparently ignored the provisions of its own code with reference to the issuance of cabaret licenses, and based its denial on criteria not specified or referred to therein. On the other hand, we do not find sufficient evidence in the record now before us to warrant our reinstatement of the direction that the desired cabaret license be granted.

Accordingly the order of the Appellate Division should be modified by reinstating so much of the judgment of Special Term as annulled the determination of the board of trustees and by dismissing the balance of the present proceeding without prejudice to the right of the applicant to reapply for a cabaret license on the basis of conditions and considerations shown currently to exist, and, as so modified, the order should be affirmed.

Chief Judge Fuld and Judges Burke, Breitel, Jasen, Gabrielli, Jones and Wachtler concur.

Order modified, with costs, in accordance with the memorandum herein, and, as so modified, affirmed.