Matter of Helping Hands of WNY, Inc. v Carrion

Matter of Helping Hands of WNY, Inc. v Carrion 2010 NY Slip Op 01273 [70 AD3d 1483] February 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

In the Matter of Helping Hands of WNY, Inc., Petitioner, v Gladys Carrion, Commissioner, New York State Office of Children and Family Services, et al., Respondents.

—[*1] Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Anthony J. Cervi of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondents.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Paula L. Feroleto, J.], dated May 19, 2009) to review a determination of respondents. The determination denied petitioner's application for a license to operate a day care center.

It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination denying its application for a license to operate a day care center. Contrary to petitioner's contention, the determination is supported by substantial evidence (see Matter of Gates of Goodness & Mercy v Johnson, 49 AD3d 1295 [2008]; see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). The evidence presented at the hearing established that the proposed site for the day care center did not comply with the relevant provisions of the New York State Uniform Fire Prevention and Building Code and other safety regulations (see 18 NYCRR 418-1.3 [o]; 418-1.4 [h]), and that the proposed director of the day care center did not meet the minimum qualifications set forth in 18 NYCRR 418-1.13 (g). Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.