
    In the Matter of GM & M Retail Liquor, Inc., Petitioner, v New York State Liquor Authority, Respondent.
    [620 NYS2d 388]
   Petition in a proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Herman Cahn, J.], entered on October 26, 1993) unanimously granted, annulling the determination of respondent State Liquor Authority dated August 19, 1993, which, after a hearing, suspended petitioner’s liquor license for 20 days and assessed petitioner with a $1,000 bond claim, annulled, without costs or disbursements.

Respondent’s determination, unsupported by substantial evidence in the record, cannot stand (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176). At the hearing on charges of violating Alcoholic Beverage Control Law § 65 (2), a prohibition against selling alcohol to a person "visibly intoxicated”, the sole witness against petitioner was the undercover police officer who issued the summons. His testimony, which ranged from equivocal to contradictory, never established that petitioner’s salesperson did, or even could, observe the alleged intoxicated patron’s condition at the time of the sale. Concur—Kupferman, J. P., Ross, Rubin and Williams, JJ.  