Town of Oyster Bay v. Commissioner of State of New York Office of Mental Health

112 A.D.2d 241, 491 N.Y.S.2d 457, 1985 N.Y. App. Div. LEXIS 55985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1985
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Office of Mental Health, dated December 22, 1983, which, after a hearing, found that the establishment of a community residential facility at a contested location would be appropriate.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

The Commissioner properly found that petitioner had failed to sustain its burden of showing that the establishment of the proposed facility at the contested location would substantially alter the nature and character of the community pursuant to Mental Hygiene Law § 41.34 (c) (5). The testimony of petitioner’s witnesses opposed to the location was based on mere speculation and failed to show, by evidence of a concrete and convincing nature, that any such change would occur (Grasmere Homeowners’ Assn. v Introne, 84 AD2d 778). The Commissioner’s determination was supported by substantial evidence (Matter of Pell v Board of Educ., 34 NY2d 222).

Furthermore, petitioner’s procedural objections are without merit. Mangano, J. P., Thompson, Brown and Kunzeman, JJ., concur.