MICHAEL L. KOBIOLKA, HAMBURG, MAGAVERN MAGAVERN GRIMM LLP,
BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PETITIONER.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE
OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, AND WINSLOW, JJ.
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 [Diane
Y. Devlin, J.], entered January 26, 2017) to review a
determination of respondent. The determination permitted the
establishment of a group home for developmentally disabled
hereby ORDERED that the determination is confirmed without
costs and the petition is dismissed.
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
petitioner, and the matter was transferred to this Court
pursuant to CPLR 7804 (g). We reject petitioner's
contention that it was denied its right to due process based
on the Hearing Officer's denial of its requests for an
adjournment of the hearing (see Matter of Frederick G. v
New York State Cent. Register of Child Abuse &
Maltreatment, 53 A.D.3d 1075, 1076 [4th Dept 2008];
cf. Matter of Crimi v Droskoski, 217 A.D.2d 698, 699
[2d Dept 1995]). The record establishes that the Hearing
Officer provided petitioner with an additional 21 days beyond
the 15-day period within which it was required by statute to
hold the hearing (see Mental Hygiene Law §
41.34 [c] ). Moreover, more than three months elapsed
between the time the sponsoring agency gave notice that it
had selected a site for the proposed facility and the date of
the hearing, and thus petitioner had ample time to prepare
for the hearing.
contends that, if it had been given additional time to
prepare for the hearing, it could have proposed alternative
sites, and thus the denial of an adjournment was an abuse of
discretion. If petitioner believed that another site would be
appropriate, however, it should have suggested another site
in response to the sponsoring agency's initial notice or,
if needed, asked for time to find such a site (see
Mental Hygiene Law § 41.34 [c]  [B]). Instead,
petitioner decided to object to the facility outright
(see § 41.34 [c]  [C]), which led the
sponsoring agency to request an "immediate hearing"
(§ 41.34 [c] ). We therefore respectfully disagree
with our dissenting colleague that there was no reason for
petitioner to anticipate preparing for a hearing upon
receiving notice from the sponsoring agency.
further respectfully disagree with our dissenting colleague
that an adjournment should have been granted so that
petitioner could study traffic and waste disposal concerns.
In its requests for an adjournment, petitioner did not state
that it needed time to study those issues. It was not until
after the decision of respondent's Acting Commissioner,
in which she stated that petitioner's traffic and septic
concerns were not based on any studies, that petitioner
argued that it should have been granted an adjournment to
study those issues. To the extent that petitioner contends
that its stated reason of needing "time to prepare"
encompassed those specific issues, we reject that contention.
To conclude otherwise would mean that adjournments should
always be granted upon request, even when it is well settled
that the decision to grant or deny an adjournment is a matter
of discretion (see Redd v Juarbe, 124 A.D.3d 1274,
1276 [4th Dept 2015]).
reject petitioner's further contention that the
determination is not supported by substantial evidence
(see generally Matter of Jennings v New York State Off.
of Mental Health, 90 N.Y.2d 227, 239 ). Respondent
considered the concentration of similar facilities in the
area, and determined that the nature and character of the
area in which the facility is to be based would not be
substantially altered as a result of establishment of the
facility (see Mental Hygiene Law § 41.34 [c]
; Jennings, 90 N.Y.2d at 240-241). Although
petitioner submitted evidence that two neighboring towns had
fewer such facilities than petitioner, the record establishes
that other neighboring towns had more facilities than
petitioner. In any event, "[t]he mere presence of other
facilities already situated in a particular area cannot be
the sole basis for denying the establishment of a similar new
facility when such need for that facility is
demonstrated" (Jennings, 90 N.Y.2d at 242;
see Matter of City of Mount Vernon v OMRDD, 56
A.D.3d 771, 772 [2d Dept 2008]; Matter of Town of
Huntington v Maul, 52 A.D.3d 725, 726 [2d Dept 2008]).
Petitioner's objection to "the suitability of the
proposed site was not relevant" to the issue whether
the group home would substantially alter the nature and
character of the neighborhood (Town of Pleasant Val. v
Wassaic Dev. Disabilities Servs. Off., 92 A.D.2d 543,
544 [2d Dept 1983]).
considered petitioner's remaining contention and conclude
that it is without merit.
concur except Whalen, P.J., who dissents and votes to grant
the petition in part and annul the determination in
accordance with the following memorandum: I respectfully
dissent because I agree with petitioner that the Hearing
Officer erred in denying its requests for an adjournment to
enable it to prepare for the hearing. At the hearing,
petitioner's witnesses expressed concerns that a
community residential facility for the developmentally
disabled at the proposed site, which is on a steep hill,
could create traffic and waste disposal problems. In her
decision, respondent's Acting Commissioner recognized
those concerns as "important, " but rejected them
as speculative and conjectural absent "evidence such as
septic or traffic studies to indicate that the proposed
residence would detrimentally alter the nature and character
of the neighborhood." Although the decision whether to
grant an adjournment is a matter of discretion (see
Matter of Estafanous v New York City Envtl. Control Bd.,
136 A.D.3d 906, 907 [2d Dept 2016]; Redd v Juarbe,
124 A.D.3d 1274, 1276 [4th Dept 2015]), I conclude that the
denial of petitioner's requests was an abuse of
discretion that may well have deprived petitioner of the
opportunity to obtain the evidence it needed to prove its
requested an adjournment well before the hearing date
(cf. Matter of A & U Auto Repair v New York State
Dept. of Motor Vehs., 135 A.D.3d 856, 857 [2d Dept
2016]), and identified its grounds for an adjournment as a
need to prepare its case and a need to consider hiring
outside counsel in view of other obligations on the part of
its Town Attorney. In my view, the basis for petitioner's
requests was reasonable, and its need for an adjournment
"did not result from [a] failure to exercise due
diligence" (Stevens v Auburn Mem. Hosp., 286
A.D.2d 965, 966 [4th Dept 2001]; cf. Park Lane N. Owners,
Inc. v Gengo, 151 A.D.3d 874, 875-876 [2d Dept 2017]).
The majority's conclusion that petitioner had ample time
to prepare for the hearing presumes that petitioner should
have started to prepare upon receipt of notice from the
sponsoring agency that the site had been selected. One of the
purposes of Mental Hygiene Law § 41.34, however, is
"to encourage a process of joint discussion and
accommodation between the providers of care and services to
the mentally disabled and representatives of the
community" (Matter of Jennings v New York State Off.
of Mental Health, 90 N.Y.2d 227, 240  [internal
quotation marks omitted]), and here discussions between
petitioner's representatives and the sponsoring agency
took place during the period after the site selection notice
and before the sponsoring agency's request for a hearing,
which was made just over a month prior to the hearing. Under
the circumstances, I agree with petitioner that it was not
obligated to spend time and money preparing for a hearing
before the sponsoring agency actually requested one.
Moreover, petitioner's traffic and waste disposal
concerns appear to be legitimate, and in my view they are
relevant to the issue whether the proposed facility would
substantially alter the nature and character of the area
(see Matter of Town of Bedford v State of New York Off.
of Mental Retardation & Dev. Disabilities, 144
A.D.2d 473, 474 [2d Dept 1988]; see generally §
41.34 [c] ; Jennings, 90 N.Y.2d at 240-241).
as petitioner offered substantial reasons in support of its
requests for an adjournment and there was no compelling
reason to deny the requests, I conclude that the Hearing
Officer abused her discretion in denying them (see Matter
of Messina v Bellmore Fire Dist. Commn., Bd. of Fire
Commrs., 242 A.D.2d 631, 633 [2d Dept 1997]; see
generally Chamberlain v Dundon [appeal No. 2], 61 A.D.3d
1378, 1379 [4th Dept 2009]; Matter of Treger, 251
A.D.2d 1067, 1067 [4th Dept 1998]). I would therefore annul
the challenged determination and remit ...