Opinion
April 29, 1996
Appeal from the Supreme Court, Westchester County (La Cava, J.).
Ordered that the judgment is affirmed, with one bill of costs.
A hearing pursuant to Mental Hygiene Law § 41.34 (c)(5) is not an "adjudicatory proceeding" as defined by State Administrative Procedure Act § 102 (3). State Administrative Procedure Act § 102 (3) and § 301 (3) define an adjudicatory proceeding as "any activity * * * before an agency * * * in which a determination of the legal rights * * * of named parties thereto is required by law to be made only on a record". There is no requirement in the Mental Hygiene Law that the hearing pursuant to Mental Hygiene Law § 41.34 (c) (5) be conducted only on a record. Thus, the petitioner was not entitled to enjoin the holding of such a hearing pending the promulgation of rules governing such hearings by the respondent New York State Office of Mental Retardation and Developmental Disabilities ( see, Town of DeWitt v. Surles, 187 A.D.2d 969). Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.