Shell Lounge, Inc. v. New York State Liquor Authority

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Liquor Authority, dated August 11, 1992, which, after a hearing, suspended the petitioner’s liquor license for a 10-day period.

Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the charges are dismissed.

The evidence adduced at the administrative hearing established that a "Broadway” video poker game was in operation on the licensed premises during an inspection in November 1990. However, the record fails to establish that the subject video game awarded a player anything of value for drawing a winning hand, such as an extension of playing time or a free game (see, Matter of 162 Gardiners Ave. Lounge v New York State Liq. Auth., 171 AD2d 662). The record thereby lacks substantial evidence to support the respondent’s finding that the the video game at issue was a gambling device in violation of 9 NYCRR 53.1 (t) and Alcoholic Beverage Control Law § 106 *537(6). Accordingly, the determination should be annulled. Sullivan, J. P., Lawrence, Pizzuto and Friedmann, JJ., concur.