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

Appellate Division of the Supreme Court of New York

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

191 A.D.2d 572, 595 N.Y.S.2d 96, 1993 N.Y. App. Div. LEXIS 2283

Appellate Division of the Supreme Court of the State of New York·Decided March 15, 1993·Published·Cited by 8 cases

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Office of Mental Health, dated May 29, 1990, which, after a hearing, found that the [573]*573respondents may proceed with the establishment of a community residence facility at 392 Holly Place in Lakeview, in the Town of Hempstead.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The Commissioner properly considered the need for the proposed residence facility within Nassau County as a whole and was not required to look to the need of the town or the particular community (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Dev. Disabilities, 121 AD2d 388, 389). In contesting the establishment of the proposed community residence facility, the Town failed to meet its burden of adducing concrete and convincing evidence that the establishment of the facility will result in both an over-concentration of similar facilities in the area and a substantial alteration of the nature and character of the community (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Health, 166 AD2d 709). Moreover, the Commissioner’s determination was supported by substantial evidence (see, CPLR 7803 [4]).

The Town’s remaining contention is without merit. Bracken, J. P., Lawrence, Eiber and Pizzuto, JJ., concur.

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—Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Office of Mental Health, dated May 29, 1990, which, after a hearing, found that the [573]*573respondents may proceed with the establishment of a community residence facility at 392 Holly Place in Lakeview, in the Town of Hempstead.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The Commissioner properly considered the need for the proposed residence facility within Nassau County as a whole and was not required to look to the need of the town or the particular community (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Dev. Disabilities, 121 AD2d 388, 389). In contesting the establishment of the proposed community residence facility, the Town failed to meet its burden of adducing concrete and convincing evidence that the establishment of the facility will result in both an over-concentration of similar facilities in the area and a substantial alteration of the nature and character of the community (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Health, 166 AD2d 709). Moreover, the Commissioner’s determination was supported by substantial evidence (see, CPLR 7803 [4]).

The Town’s remaining contention is without merit. Bracken, J. P., Lawrence, Eiber and Pizzuto, JJ., concur.

Town of Hempstead v. Commissioner of the State of New York Office of Mental Health, 191 A.D.2d 572, 595 N.Y.S.2d 96, 1993 N.Y. App. Div. LEXIS 2283 (N.Y. Ct. App. 1993).

Pincite

191 A.D.2d 572 (Town of Hempstead v. Commissioner of the State of New York Office of Mental Health) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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