Kaplan v. Sullivan County Alcoholic Beverage Control Board

Appeal from an order of a Special Term, Supreme Court, Sullivan County. In ordering the respondents to receive and process petitioners’ application for a change of class of their annual restaurant beer license to a liquor license the Special Term followed the decision of the court on the earlier appeal (Matter of Kaplan v. Bohan, 8 A D 2d 270). The appellants moved to dismiss the *989petition as insufficient on its face as a matter of law. They did not request in their moving papers at Special Term that if the motion were denied they would want to answer, but apparently requested this in a memorandum filed with the court at Special Term. Appellants argue on appeal that they should be allowed to answer. They do not suggest a factual issue to be tried or any question that would become available by answer not reached by their motion to dismiss. The whole issue as argued and presented is one of law which the motion to dismiss the petition is a proper procedural mechanism to determine. If the appellants in good faith have an issue of fact to try out in this proceeding they should apply to the Special Term for permission to plead it, showing in their papers what is absent from the record, the nature of such an issue. Order unanimously affirmed, with $10 costs to petitioners-respondents without prejudice to an application to Special Term in accordance with this decision. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.