Town of Hempstead v. Commissioner of State of New York Office of Mental

97 A.D.2d 826, 468 N.Y.S.2d 710, 1983 N.Y. App. Div. LEXIS 20606

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1983
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of State of New York Office of Mental Health, dated December 23, 1982, which, after a hearing, found that the establishment of a community residence facility at a contested location would be appropriate. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. On this record, we find that the commissioner’s determination was supported by substantial evidence. The commissioner was correct in concluding that the two other facilities in the area were not the same or of similar type as the proposed facility, and they therefore did not have to be considered in a determination of whether the nature and character of the area in question would be altered by the establishment of the proposed facility. We note further that although the commissioner neglected to discuss the need for the proposed facility in his decision, in an affidavit submitted with his answer to the instant petition, he stated that a discussion of need was inadvertently omitted, and that he did in fact find that such a need existed. Accordingly, it is unnecessary to remit the matter to the commissioner for a further determination on that question. Lazer, J. P., Gibbons, Weinstein and Boyers, JJ., concur.