Brent v. Hoch
| Citation | 211 N.Y.S.2d 853,13 A.D.2d 505 |
| Parties | Application of Albert BRENT, as Chairman of the Citizens Planning Council of Huntington, Jack Giambalvo and Geraldine Giambalvo, Charles Berman and Renee Berman, Petitioners-Appellants, v. Paul H. HOCH, Commissioner of Mental Hygiene of the State of New York, Respondent. |
| Decision Date | 06 March 1961 |
| Court | New York Supreme Court Appellate Division |
Aileen Haas Schwartz, New York City, Bernard Schwartz, New York City, of counsel, for appellant.
Louis J. Lefkowitz, Atty. Gen., Geo. C. Mantzoros, New York City, of counsel, for respondent.
Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding under article 78 of the Civil Practice Act, to review the determination of respondent, Commissioner of Mental Hygiene, to take certain lands in Suffolk County for the purpose of erecting and maintaining thereon a state school for retarded children, pursuant to the provisions of section 46 of the Mental Hygiene Law, petitioners appeal from an order of the Supreme Court, Suffolk County, dated October 6, 1960, granting the cross motion of respondent to dismiss the petition for insufficiency.
Order affirmed, without costs.
Since the action by respondent was legislative in character (Rindge Co. v. Los Angeles, 262 U.S. 700, 709, 43 S.Ct. 689, 67 L.Ed. 1186; Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 64 L.Ed. 135; Matter of City of New York [Ely Avenue], 217 N.Y. 45, 57, 111 N.E. 266, 270), his action may not be reviewed by a proceeding under article 78 of the Civil Practice Act (Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657; Matter of Long Island R. R. Co. v. Hylan, 240 N.Y. 199, 148 N.E. 189; People ex rel. Trustees of Village of Jamaica v. Board of Supervisors of Queens County, 131 N.Y. 468, 30 N.E. 488; Schulman v. McMorran, 9 A.D.2d 1007, 195 N.Y.S.2d 5).
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