
    In the Matter of Utica Cheese, Inc., Respondent, v J. Roger Barber, as Commissioner of the New York Department of Agriculture and Markets, et al., Appellants.
    Argued April 29, 1980;
    decided May 6, 1980
    
      APPEARANCES OF COUNSEL
    
      Thomas G. Conway and Joan A. Kehoe for appellants.
    
      Arnold W. Proskin for respondent.
   OPINION OF THE COURT

Memorandum.

In this article 78 proceeding petitioner seeks to compel the Commissioner of the Department of Agriculture and Markets to act on its milk dealer license application, which has now been pending for some 16 months. Under subdivision 1 of section 301 of the State Administrative Procedure Act, the commissioner is required to reach his decision "within reasonable time” (see, also, State Administrative Procedure Act, § 102, subd 3). Though the statute does not define this period with specificity, we would have to deem it elapsed in this, case save for the commissioner’s advice as to the unusual nature of the matters he has been compelled to investigate in aid of his ultimate determination. But, as appears from the pertinent facts and circumstances revealed in the record in this proceeding and fairly summarized in the memorandum at the Appellate Division, the commissioner is unable to provide a better estimate of when, if ever, he will be able to ascertain the relevance and availability of the further information he seeks other than that it will be at some unknown time in the future. Fairness to the applicant therefore requires that a hearing be held and a determination rendered promptly. To that end, the order of the Appellate Division is modified to direct that these steps be accomplished no later than 90 days from the date of this decision and, as so modified, affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

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