Town of Bos. v. N.Y.S. Office for People With Developmental Disabilities

• Decision Date: 09 November 2017
• Citation: 64 N.Y.S.3d 800,155 A.D.3d 1535
• Parties: In the Matter of TOWN OF BOSTON, Petitioner, v. NEW YORK STATE OFFICE for People with Developmental Disabilities, Respondent.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1535
64 N.Y.S.3d 800

In the Matter of TOWN OF BOSTON, Petitioner,
v.
NEW YORK STATE OFFICE for People with Developmental Disabilities, Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 9, 2017.

64 N.Y.S.3d 801

Michael L. Kobiolka, Hamburg, Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of Counsel), for Petitioner.

Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, AND WINSLOW, JJ.

MEMORANDUM:

155 A.D.3d 1535

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, 861 N.Y.S.2d 554 [4th Dept.2008] ; cf. Matter of Crimi v. Droskoski, 217 A.D.2d 698, 699, 630 N.Y.S.2d 337 [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][5] ). 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.

Petitioner 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,

155 A.D.3d 1536

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][1][B] ). Instead, petitioner decided to object to the facility outright (see § 41.34[c][1][C] ), which led the sponsoring agency to request an " immediate hearing" ( § 41.34[c][5] ). 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.

We 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.

64 N.Y.S.3d 802

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, 1 N.Y.S.3d 638 [4th Dept.2015] ).

We reject petitioner's further...