Town of Hempstead v. Commissioner of State of New York Office of Mental Retardation & Developmental Disabilities (119 A.D.2d 582, 1986)

— Proceedings pursuant to CPLR article 78, (1) to review a determination of the respondent Commissioner, State of New York Office of Mental Retardation and Developmental Disabilities (hereinafter the Commissioner), dated September 25, 1984, which, after a hearing pursuant to Mental Hygiene Law § 41.34, found that the establishment of a community residential facility at a contested location would be appropriate (proceeding No. 1), and (2) to compel the Commissioner to respond to the petitioner Stephenson’s information request, pursuant to Public Officers Law § 89, to void any decision which may be made based on a Padavan hearing held on August 29, 1984, and to direct that a new Padavan hearing be held (proceeding No. 2).

Determination of the Commissioner dated September 25, 1984 confirmed and proceedings dismissed on the merits, with one bill of costs.

The petitioner in proceeding No. 1, the Town of Hempstead, bore the burden of proof at the Padavan hearing held on August 29, 1984, of adducing concrete and convincing evidence that the establishment of the proposed 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 State of N. Y Off. of Mental Health, 97 AD2d 826; Town of Hempstead v Commissioner, State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 89 AD2d 850; Grasmere Homeowners’ Assn. v Introne, 84 AD2d 778). The record reveals that the petitioner Town of Hempstead failed to meet this burden, and that the Commissioner’s determination was supported by substantial evidence (see, Matter of Town of Oyster Bay v Commissioner of State of N. Y. Off. of Mental Health, 112 AD2d 241).

The proceeding brought by the petitioner Stephenson (proceeding No. 2) must also be dismissed. Stephenson failed to exhaust his administrative appeal remedy as provided for in Public Officers Law § 89 (4) (a), (b) and, therefore, may not seek to compel disclosure by a CPLR article 78 proceeding. Furthermore, the record demonstrates that the Commissioner did, in fact, make an adequate reply and disclosure in response to the petitioner’s request.

Similarly, the petitioner Stephenson is not a proper party to the Padavan hearing and therefore lacks standing to seek to void any decision which may be made based on the Padavan hearing held on August 29, 1984 (cf. Grasmere Homeowners’ Assn. v Introne, supra). Although a neighboring homeowner such as the petitioner Stephenson may seek to overturn the Commissioner’s eventual determination upon the grounds of overconcentration and substantial alteration (see, e.g., Grasmere Homeowners’ Assn. v Introne, supra; cf. Matter of Fritz v Huntington Hosp., 39 NY2d 339), Stephenson’s petition fails to do so. Mangano, J. P., Gibbons, Lawrence and Kunzeman, JJ., concur.