Bay v. Surles

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Office of Mental Health dated April 12, 1990, which, after a hearing, found that the respondents may proceed with the establishment of a community residence facility at 103 Frost Pond Road in Glen Head, Town of Oyster Bay. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements. The petitioner failed to sustain its burden of proving by clear and convincing evidence that the establishment of the proposed community residence facility would result in both an overconcentration 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 the State of N. Y. Off. of Mental Health, 166 AD2d 709). We also find that the Commissioner’s determination was supported by substantial evidence (see, CPLR 7803 [4]). Mangano, P. J., Thompson, Bracken and Lawrence, JJ., concur.