Walker Creamery Products Co. v. Barber , 416 N.Y.S.2d 343 ( 1979 )

Appeal from a judgment of the Supreme Court at Special Term, entered February 9, 1978 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, and confirmed a determination of the respondent commissioner granting an extension of the milk dealer’s license of respondent Upstate Milk Cooperatives, Inc. Petitioners are milk dealers in Chautauqua and Cattaraugus Counties who seek review of the commissioner’s determination which granted Upstate Milk Cooperatives, Inc., an extension of its milk dealer’s license to include Chautauqua and Cattaraugus Counties. The determination was made following a hearing pursuant to section 258-c of the Agriculture and Markets Law in which petitioners participated by cross-examining witnesses and offering direct proof on their own behalf. The initial question raised on this appeal is the scope of judicial review of the commissioner’s determination. Relying on Matter of Dairylea Coop. v Walkley (38 NY2d 6), Special Term limited its review to the question of whether the commissioner had exceeded his authority or disregarded the statutory standards. Petitioners contend that the court’s rationale in Dairylea, which involved the granting of an extension of a milk dealer’s license without a hearing, is not applicable where, as here, there has been a hearing in which the competitors seeking review have participated. We disagree. The court’s reliance in Dairylea upon Matter of Guardian Life Ins. Co. v Bohlinger (308 NY 174) in setting forth the limited scope of review in a CPLR article 78 proceeding brought by a competitor (Matter of Dairylea Coop. v Walkley, supra, p 12) makes it clear that the scope of review is so limited regardless of whether an administrative hearing has been held. Moreover, section 258-c of the Agriculture and Markets Law does not provide for intervention in the hearing by competitors of the applicant. Rather, petitioners’ participation was pursuant to departmental policy and procedures which specifically provide that an intervenor’s rights will not be expanded by reason of its participation. Accordingly, we find that Special Term correctly limited its scope of review to the question of whether the commissioner exceeded his authority or disregarded the statutory standards. Having so concluded, we must affirm Special Term’s dismissal of the petition since the record clearly establishes that the commissioner neither exceeded his authority nor disregarded the statutory standards. Judgment affirmed, without costs. Mahoney, P. J., Sweeney, Staley, Jr., and Main, JJ., concur.