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

Matter of HUNTER'S CROSSING NEIGHBORHOOD ASSOCIATION, et al., Petitioners, v. Thomas A. MAUL, Commissioner of New York State Office of Mental Retardation and Developmental Disabilities, Respondent.

Decided: December 30, 1999

PRESENT:  LAWTON, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ. Mindy L. Zoghlin, Rochester, for petitioners. Patrick Barnett-Mulligan, Albany, for respondent.

 Petitioners commenced this CPLR article 78 proceeding challenging respondent's determination, after a hearing, that 80 Kentucky Crossing in the Town of Greece (Town) is more suitable for a group home than alternative sites proposed by the Town (see, Mental Hygiene Law § 41.34).   Before transferring the proceeding to us pursuant to CPLR 7804(g), Supreme Court denied respondent's objection in point of law and determined that petitioners have standing.   We conclude, however, that petitioners lack standing.   We reject petitioners' contention that, because respondent failed to appeal the interlocutory order denying the objection in point of law, that order became the law of the case (see, CPLR 7804[g];  Matter of Desmone v. Blum, 99 A.D.2d 170, 177, 473 N.Y.S.2d 196;  see also, Schmitt v. Perales, 187 A.D.2d 1041, 593 N.Y.S.2d 486).   Petitioners contend that they have standing to bring this proceeding because they are both homeowners residing near the proposed site and the civic organization that represents them.   They do not contend, however, that “the nature and character of [the] area will be substantially altered by the establishment of the proposed facility” (Matter of Jennings v. New York State Off. of Mental Health, 90 N.Y.2d 227, 240-241, 660 N.Y.S.2d 352, 682 N.E.2d 953) and thus that they will be injured by the establishment of the proposed facility (see, Matter of Bartnik v. Maul, 223 A.D.2d 541, 542, 636 N.Y.S.2d 815, lv. denied 87 N.Y.2d 811, 644 N.Y.S.2d 144, 666 N.E.2d 1058;  Matter of Town of Hempstead v. Commissioner of State of N.Y. Off. of Mental Retardation & Dev. Disabilities, 119 A.D.2d 582, 583-584, 500 N.Y.S.2d 750;  see also, Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034;  cf., Matter of Talisman Dr. Civic Assn. v. Webb, 138 A.D.2d 610, 526 N.Y.S.2d 193;  Grasmere Homeowners' Assn. v. Introne, 84 A.D.2d 778, 443 N.Y.S.2d 956).   The issue of suitability is properly raised by a municipality (see, e.g., Matter of Town of Cheektowaga v. Howe, 206 A.D.2d 948, 615 N.Y.S.2d 190;  Matter of Town of DeWitt v. Surles [appeal No. 4], 187 A.D.2d 969, 591 N.Y.S.2d 655;  Matter of Town of Gates v. State of New York Off. of Mental Retardation & Dev. Disabilities, 143 A.D.2d 517, 533 N.Y.S.2d 160).

Petition unanimously dismissed without costs.


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