Matter of Vil. of Port Chester v Ayotte

Matter of Village of Port Chester v Ayotte 2006 NY Slip Op 08139 [34 AD3d 489] November 8, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

In the Matter of Village of Port Chester, Petitioner,
v
Thomas Ayotte et al., Respondents.

—[*1]

Proceeding pursuant to CPLR article 78 to review a determination of Thomas Maul, Commissioner of the State of New York Office of Mental Retardation and Developmental Disabilities, dated February 3, 2005, which, after a hearing, rejected the petitioner's objection to the establishment of a community residential facility for the developmentally disabled in the Village of Port Chester.

Adjudged that the determination is confirmed, the petition is denied, 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 Thomas Maul, Commissioner of the State of New York Office of Mental Retardation and Developmental Disabilities, is supported by substantial evidence (see Mental Hygiene Law § 41.34 [c] [5]; Matter of Village of Wappingers Falls v Maul, 306 AD2d 416 [2003]; Matter of Silberman v New York State Off. of Mental Retardation & Dev. Disabilities, [*2]302 AD2d 599 [2003]). The petitioner failed to meet its burden of adducing clear and convincing evidence that the establishment of the subject community residential facility would result in an overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area (see Matter of Town of Mt. Pleasant v Toulon, 292 AD2d 615 [2002]; Matter of Incorporated Vil. of Westbury v Maul, 263 AD2d 508 [1999]; Matter of Town of Oyster Bay v Maul, 247 AD2d 545 [1998]). Schmidt, J.P., Adams, Dillon and Covello, JJ., concur.