February 3, 1981
Judgment, Supreme Court, New York County, entered January 7, 1980, which annulled the respondent New York State Liquor Authority's determination denying a liquor license to petitioner and directed that a license be issued, unanimously reversed, on the law, and the petition dismissed, without costs and without disbursements. While this appeal was pending, petitioner Emerenciano Cedeno died and his wife was substituted in his place with determination being reserved on the threshold issue of the status of decedent's right to a license, i.e., did it survive his death and devolve upon his wife, the administratrix of his estate. On July 5, 1979, Mr. Cedeno filed an application for a retail package liquor store. No license was ever issued. We are not confronted with a situation where a license was issued and the licensee subsequently died. Accordingly, as Mr. Cedeno filed his application as an individual and it was evaluated on that basis, the proceeding did not survive the death of the applicant (Matter of Barry v. O'Connell, 306 N.Y. 599). In any event, we have examined the record and conclude that the authority's determination has a rational basis.
Concur — Fein, J.P., Lupiano, Silverman, Bloom and Carro, JJ.