        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

300
TP 11-01956
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF PUTNAM COMPANIES, DOING
BUSINESS AS ACORN MARKETS, INC., PETITIONER,

                    V                              MEMORANDUM AND ORDER

NIRAV R. SHAH, M.D., M.P.H., COMMISSIONER,
NEW YORK STATE DEPARTMENT OF HEALTH, RESPONDENT.


LAW OFFICE OF DAVID H. JACOBS, CORNING (SHAWN M. SAURO OF COUNSEL),
FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Steuben County [Marianne
Furfure, A.J.], entered September 2, 2011) to review a determination
of respondent. The determination, among other things, adjudged that
petitioner violated Public Health Law § 1399-cc (2).

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination that a clerk in one of its stores
sold cigarettes to a person under the age of 18 in violation of Public
Health Law § 1399-cc (2) and that petitioner’s registration to sell
cigarettes and lottery tickets must be suspended for six months. The
sale was made to a minor employed by respondent, and the transaction
was supervised and observed by one of respondent’s investigators. We
note at the outset that Supreme Court should have transferred the
entire proceeding to this Court, rather than disposing of petitioner’s
contention that it was deprived of due process when the Administrative
Law Judge (ALJ) refused to compel the minor who purchased the
cigarettes to testify at the hearing (see CPLR 7804 [g]). In cases in
which a substantial evidence issue is raised, the court must dispose
of “such other objections [in point of law] as could terminate the
proceeding” (id.). “[A]n ‘objection in point of law’ is one raised
either by respondent in the answer or by petitioner in response to
‘new matter contained in the answer’ ” (Matter of Hoch v New York
State Dept. of Health, 1 AD3d 994, 994; see also Matter of G & G Shops
v New York City Loft Bd., 193 AD2d 405, 405). Here, petitioner’s due
process contention does not fall into either of those categories.
                                 -2-                           300
                                                         TP 11-01956

     In any event, reviewing the matter de novo (see Hoch, 1 AD3d at
995), we conclude that the ALJ’s refusal to compel the minor to
testify did not violate petitioner’s right to due process. The right
to cross-examine witnesses in an administrative proceeding is a
limited one (see Matter of Gordon v Brown, 84 NY2d 574, 578), and
“[t]he ALJ properly determined that cross-examination [of the minor]
in this instance was neither necessary nor required” (Matter of
Friendly Convenience, Inc. v New York City Dept. of Consumer Affairs,
71 AD3d 577, 577). We further conclude that the determination is
supported by substantial evidence (see generally 300 Gramatan Ave.
Assoc. v State Div. of Human Rights, 45 NY2d 176, 181-182). The
investigator who observed the sale of cigarettes to the minor
testified at the hearing that she was standing directly behind the
minor when she requested and paid for the cigarettes, and the
investigator verified the age of the minor through her driver’s
license and birth certificate, copies of which were admitted in
evidence (see Matter of Genovese Drug Stores, Inc. v Harper, 49 AD3d
735, 735-736; cf. Hoch, 1 AD3d at 995). In addition, respondent
produced documentary evidence that petitioner had violated Public
Health Law § 1399-cc (2) once before in the previous 36 months, and
the director of retail centers for petitioner testified at the hearing
that its employees had not completed a “state certified tobacco sales
training program” (§ 1399-ee [3] [a]). The documents and testimony
constituted substantial evidence supporting the determination that
petitioner had accumulated “three points or more” on its record,
requiring a six-month suspension of petitioner’s registration to sell
cigarettes and lottery tickets (§ 1399-ee [3] [e]).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
