Opinion
Reargued December 12, 1968
Decided January 9, 1969
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, EDWARD T. McCAFFREY, J.
Robert W. Corcoran for appellant.
Benjamin Laskin and Hyman Amsel for respondent.
MEMORANDUM. On the original argument of this appeal various documents submitted to the Authority subsequent to its determination were relied upon by petitioner-appellant. The Authority explains that the shortness of time in which the appeal was brought on prevented it from taking the necessary action to prevent consideration of the improperly included matter. Reliance on these documents was not proper, since a court's review of administrative action is limited to the record made before the Authority. Nevertheless, when the material not before the Authority at the time of decision is eliminated, the proper record was sufficient to establish that the agency's determination is neither arbitrary nor capricious, especially in light of the fact that there was then the imminent prospect of a large housing project in the vicinity. Hence, the standards of public convenience and advantage have been satisfied by the determination ( Matter of Forman v. New York State Liq. Auth., 21 N.Y.2d 984; see, also, Matter of Sinacore v. New York State Liq. Auth., 21 N.Y.2d 379).
Chief Judge FULD and Judges BURKE, BERGAN, BREITEL and JASEN concur in memorandum; Judges SCILEPPI and KEATING dissent and vote to reverse.
Upon reargument: Order affirmed, without costs, in a memorandum.