Opinion
2002-00298
Submitted January 31, 2003.
February 24, 2003.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Office of Mental Retardation Developmental Disabilities, dated February 14, 2001, which, after a hearing, rejected the petitioner's objection to the establishment of a community residential facility for the disabled in the Town of Ramapo.
Carlet, Garrison, Klein Zaretsky, LLP, New York, N.Y. (Norman I. Klein and Robert S. Getman of counsel), for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Sachin S. Pandya of counsel), for respondents New York State Office of Mental Retardation Developmental Disabilities and Commissioner of the New York State Office of Mental Retardation Developmental Disabilities.
Davis Davis, New City, N.Y. (Jordon S. Davis of counsel), for respondent Provider Hamaspik of Rockland County, Inc.
Before: GABRIEL M. KRAUSMAN, J.P., ROBERT W. SCHMIDT, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION JUDGMENT
ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with one bill of costs to the respondents appearing separately and filing separate briefs.
The determination of the respondent Commissioner of the New York State Office of Mental Retardation Development Disabilities is supported by substantial evidence and was not arbitrary and capricious (see Mental Hygiene Law § 41.34[c][5]; Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 241). The petitioner failed to meet its burden of adducing clear and convincing proof that the establishment of the subject community residential facility would result in an over-concentration of the same or similar facilities so as to substantially alter the nature and character of the area (see Matter of Jennings v. New York State Off. of Mental Health, supra at 242; Matter of Town of Oyster Bay v. Maul, 231 A.D.2d 580).
The petitioner's due process claims are barred by the doctrine of collateral estoppel, as the United States District Court for the Southern District of New York previously ruled in a Federal action between the parties, that the petitioner has no liberty or property interest recognized by New York State law (see Ramapo Homeowners' Ass'n v. New York State Office of Mental Retardation and Developmental Disabilities, 180 F. Supp.2d 519; Matter of Manshul Constr. Corp. v. New York City School Constr. Auth., 192 A.D.2d 659).
The petitioner's remaining contentions are without merit.
KRAUSMAN, J.P., SCHMIDT, CRANE and RIVERA, JJ., concur.