S.T.A. of Fredonia, Inc. v. New York State Liquor Authority ( 1999 )

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Contrary to the contention of petitioner, the determination that it violated Alcoholic Beverage Control Law § 65 (1) by selling alcoholic beverages to a person under the age of 21 years is supported by substantial evidence, i.e., the public safety officer’s hearsay testimony and the statement signed by the minor in question (see, Matter of Gray v Adduci, 73 NY2d 741, 742-743). We reject the contention of petitioner that the prior written statement of the minor could be used only to impeach his testimony pursuant to CPLR 4514. The testimony of the minor that he could not recall whether he had been served alcohol was not inconsistent with his prior written statement. Finally, by failing to submit any proof that it reasonably relied upon photographic identification of the minor, petitioner failed to sustain its burden of proving that affirmative defense (see, Alcoholic Beverage Control Law § 65 [4]; Matter of Dark Horse Tavern v New York State Liq. Auth., 232 AD2d 947, 948). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Burns, J.) Present — Law-ton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.