Opinion
February 28, 1972
In this proceeding pursuant to article 78 of the CPLR inter alia to compel the reopening of the Adolescent School Unit at Creedmoor State Hospital and the furnishing of certain educational services to the minors who have been named as petitioners herein and all other patients of Creedmoor State Hospital, the Commissioner of the State Department of Mental Hygiene and the Director of Creedmoor State Hospital appeal, by permission of this court, from so much of an order of the Supreme Court, Queens County, entered October 5, 1971, as, on reargument, denied their motion to dismiss the petition. Order reversed, on the law, insofar as appealed from, without costs, and motion to dismiss the petition granted. Petitioners failed to apply, prior to the institution of this proceeding, to the Commissioner of the State Department of Mental Hygiene, pursuant to section 86 of the Mental Hygiene Law, for an investigation, hearing and determination as to whether the proposed plan of the Director of Creedmoor State Hospital for the education of adolescent patients of that hospital was adequate and appropriate. In our opinion, the Special Term's finding that such application to the Commissioner would have been futile is not supported by the record. It was incumbent on petitioners to resort to the above administrative right and remedy before applying to the court for review of the claimed inadequate educational services (cf. People ex rel. "Anonymous" v. La Burt, 27 Misc.2d 584, affd. 14 A.D.2d 560, app. dsmd. 9 N.Y.2d 794, cert. den. 369 U.S. 428). Rabin, P.J., Hopkins, Munder, Martuscello, and Brennan, JJ., concur.