Captain Kidd's, Inc. v. New York State Liquor Authority

—When this matter was previously before us (248 AD2d 791), we withheld decision and remitted the matter to respondent, directing it to file the transcript of a witness’s direct testimony at the underlying evidentiary hearing. Respondent now informs us that it cannot comply with our direction since the audio tape of the witness’s testimony is inaudible. Inasmuch as this testimony constitutes a significant portion of the proof respondent adduced in support of the charge it levied against petitioner, its absence requires us to annul the determination and remit this matter for a new hearing (see, Matter of St. Lawrence County Dept. of Social Servs. [Roder] v Roder, 216 AD2d 609; Matter of Petty v Sullivan, 131 AD2d 762).

Cardona, P. J., Crew III, White, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is annulled, with costs, petition granted and matter remitted to respondent for a new hearing.