SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1069 

TP 16-00256 

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

IN THE MATTER OF TOWN OF EDEN, PETITIONER, 

V MEMORANDUM AND ORDER

KERRY A. DELANEY, ACTING COMMISSIONER, NEW YORK 

STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL 

DISABILITIES, RESPONDENT. 

 

WILLIAM J. TRASK, SR., BLASDELL, FOR PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF

COUNSEL), FOR RESPONDENT. 

 

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 [Deborah A.

Chimes, J.], entered February 18, 2016) to review a determination of

respondent. The determination denied petitioner’s objection to the

proposed siting of a community residential facility in the Town of

Eden. 

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

challenging respondent’s determination, made after a hearing, to

permit the establishment of a community residential facility for the

developmentally disabled within the Town of Eden, and the matter was

transferred to this Court pursuant to CPLR 7804 (g). Contrary to

petitioner’s contention, we conclude that the notice provided to

petitioner was neither deficient in content nor prejudicial to

petitioner merely because it listed, among the data maintained

pursuant to Social Services Law § 463 (see Mental Hygiene Law § 41.34

[c] [1]), several facilities that were ultimately determined by

respondent not to be sufficiently similar to the proposed community

residence to warrant consideration in the siting process (see § 41.34

[c] [1] [C]; [5]; cf. Town of Dewitt v Surles, 167 AD2d 945, 945-946). 

We reject petitioner’s further contention that respondent violated the

statutory scheme by not considering, in determining whether the nature

and character of the area would be substantially altered, all of the

State-licensed facilities within the Town. Cases construing the

statutory scheme hold that, in order for an existing facility within

the municipality to be deemed “similar” to the proposed new facility,

and thus to be considered as part of the siting process, that existing
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TP 16-00256 

facility must be a “ ‘[c]ommunity residential facility for the

disabled’ ” (§ 41.34 [a] [1]; see Matter of City of Mount Vernon v

OMRDD, 56 AD3d 771, 772; Matter of City of Newburgh v Webb, 124 AD2d

371, 372; see also Matter of Village of Newark v Introne, 84 AD2d 936,

937; Matter of Town of Onondaga v Introne, 81 AD2d 750, 750). We

conclude that the additional facilities highlighted by petitioner, a

senior assisted-living residence, one or more nursing homes, a drug

treatment facility, and a day habilitation center, were not similar to

the community residence under consideration and were not among those

required to be considered by respondent (see § 41.34 [c] [1] [C]; [5];

see also Town of Onondaga, 81 AD2d at 750).

Finally, we conclude that substantial evidence supports

respondent’s determination that the establishment of the proposed new

six-bed community residence for the disabled, in addition to those

already existing in the Town, would not “result in such a

concentration of” such facilities and similar “facilities licensed by

other state agencies that the nature and character of areas within the

municipality would be substantially altered” (Mental Hygiene Law 

§ 41.34 [c] [5]; see Matter of Jennings v New York State Off. of

Mental Health, 90 NY2d 227, 239-241; Matter of Town of Gates v

Commissioner of N.Y. State Off. of Mental Retardation & Dev.

Disabilities, 245 AD2d 1116, 1117).

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court