Association of Boards of Visitors of New York State Facilities for the Mentally Disabled v. Prevost , 471 N.Y.S.2d 342 ( 1983 )

Kane, J. (concurring).

I agree with the majority that the Board of Visitors lacked the capacity to sue and that the individual board members lacked the requisite standing to maintain this CPLR article 78 proceeding. However, I take this opportunity to comment upon the questionable conduct of respondent State Commission on Quality of Care for the Mentally Disabled (commission).

Pursuant to section 45.07 of the Mental Hygiene Law, the commission is directed to: “Provide staff and other necessary assistance upon request to boards of visitors of department facilities in performing their duties pursuant to law” (Mental Hygiene Law, § 45.07, subd [e], par 2 [emphasis added]). There can be no dispute that in the present situation the board, while attempting to fulfill its statutory duties (see Mental Hygiene Law, § 7.33) requested necessary assistance from the commission. This request, made pursuant to section 45.07, was not honored by the commission. Such action, which inevitably forced the board to secure outside counsel, is contrary to the requirements of section 45.07 (subd [e], par 2) of the Mental Hygiene Law. The action by the commission particularly troubles me since the record demonstrates that the commission was simply unwilling to fulfill its statutory obligation.

Sweeney, Mikoll and Levine, JJ., concur with Mahoney, P. J.; Kane, J., concurs in a separate opinion.

Judgment affirmed, without costs.