People v. Munsey

117 A.D.3d 84

983 N.Y.S.2d 35

2014 N.Y. Slip Op. 01782

The PEOPLE, etc., ex rel. Lesley M. DELIA, as Director of Mental Hygiene Legal Service, on behalf of Stephen S. (Anonymous), respondent,

v.Douglas MUNSEY, etc., appellant.

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

March 19, 2014.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Lake Success, N.Y. (Eric Broutman of counsel), for appellant.

Mental Hygiene Legal Service, Mineola, N.Y. (Lesley M. DeLia, Ana Vuk–Pavlovic, and Dennis B. Feld of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SYLVIA O. HINDS–RADIX, JJ.

LEVENTHAL, J.

The primary issue on this appeal is whether the Supreme Court may grant a petition for a writ of habeas corpus brought on behalf of a patient and deny a hospital's untimely involuntary retention application pursuant to article 9 of the Mental Hygiene Law without first conducting an examination into the patient's alleged mental disability and detention. Ancillary to our determination, we must also decide whether a petition for a writ of habeas corpus ostensibly filed pursuant to CPLR article 70 on behalf of a person who is involuntarily hospitalized is substantively different from a petition for a writ brought under Mental Hygiene Law § 33.15. We answer these questions in the negative.

On March 24, 2012, the New York State Office of Mental Health (hereinafter the OMH) applied for the involuntary admission of Stephen S. (hereinafter the patient), to Holliswood Hospital (hereinafter the Hospital). The application was supported by a certificate of an examining physician attesting that the patient was “paranoid and unable to care for [him]self.” In an order dated June 13, 2012, the Supreme Court, Queens County (Schulman, J.), after a hearing, granted the OMH's application to involuntarily hospitalize the patient and directed that the patient was to be retained for a period not to exceed three months.

More than three months later, on October 23, 2012, the Mental Hygiene Legal Service (hereinafter MHLS) filed the instant petition for a writ of habeas corpus on behalf of the patient, alleging that the patient was being illegally detained by the Hospital. The petition sought production of the patient before the court, and asserted that the order permitting the involuntary admission of the patient had expired on September 13, 2012.

In response, on October 25, 2012, the Hospital applied for authorization to involuntarily retain the patient pursuant to article 9 of the Mental Hygiene Law. The Hospital's application was supported by a medical certification averring that the patient was “paranoid and unable to care for [him]self.” A second certification noted that the patient suffered from “psychosis,” that he was noncompliant with his medication, and as a result, the patient was unable to care for himself. Included in the record is a psychiatric summary from the Hospital which stated that the patient had a history of psychiatric admissions for schizophrenia and paranoia. The psychiatric summary further stated that the patient's behavior was unremarkable when he was medicated, but when he was inadequately medicated he had a history of becoming “dangerously assaultive.” In addition, the psychiatric summary noted that the patient had made several statements indicating a desire to hurt others, and that he had assaulted hospital staff, fellow patients, and family members.

Notably, on August 5, 2012, just two months before the involuntary retention application was filed, the patient reportedly stabbed a hospital staff member in the neck with a pen. In addition, on October 19, 2012, just a few days before the Hospital sought his retention, the patient attacked the reporting psychiatrist, choking him and punching him in the face while stating, “You gave me permission to kill you!” The reporting psychiatrist indicated in the psychiatric summary that, despite several attempts, the patient's physicians had not been able to devise a dosage regimen which reliably controlled the patient's psychosis and assaultive tendencies, but expressed hope that such a scheme could be arrived at if given time for further trials. As noted above, the reporting psychiatrist opined that, at the present time, the patient “would most certainly pose a potential threat to [him]self and others.”

On November 7, 2012, the patient was produced before the Supreme Court. The patient's counsel contended that the patient had been wrongfully detained beyond the end of the retention period, which expired on September 13, 2012. The patient's counsel sought the patient's immediate discharge on the basis that there was no legal mandate for the patient's continued retention. In response, counsel for the Hospital argued that the controlling precedent provided that the remedy for an administrative error such as the one present here was not the immediate release of the patient, but a substantive hearing to determine whether continued retention was warranted. The Supreme Court countered that a hearing was “almost a non-remedy,” given that such a hearing would have been conducted if the Hospital had filed a timely involuntary retention application. MHLS added that it had filed the subject petition for a writ of habeas corpus pursuant to CPLR article 70, which did not require a hearing, as opposed to Mental Hygiene Law § 33.15, which does.

In the judgment appealed from, dated November 7, 2012, the Supreme Court sustained the writ, directed that the Hospital discharge the patient, and stayed the discharge for five days. The Hospital appeals. By decision and order on motion dated November 19, 2012, this Court granted the Hospital's motion to stay enforcement of the judgment pending the hearing and determination of this appeal.

Following oral argument, MHLS and the Hospital informed this Court that on April 16, 2013, the patient was discharged from the Hospital. Thus, we must initially address whether this appeal is now academic in light of the patient's release.

Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876). Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” ( id. at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876). However, an exception to the mootness doctrine permits a court to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question ( see e.g. People ex rel. McManus v. Horn, 18 N.Y.3d 660, 663–664, 944 N.Y.S.2d 448, 967 N.E.2d 671;City of New York v. Maul, 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366;Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876).

Here, the release of the patient renders this appeal academic. We nevertheless exercise our discretion to review the issues raised on this appeal pursuant to the exception to the mootness doctrine because the primary issue raised is an important one which implicates both the patient's fundamental liberty interest and the State's interest in protecting the mentally ill, and is one which is likely to recur. Further, the primary issue involved here may typically evade review because “[t]he Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary ... [and the law] require[s] frequent periodic review of a patient's status, and the release of the patient unless OMH is granted successive court orders authorizing retention” ( Mental Hygiene Legal Servs. v. Ford, 92 N.Y.2d 500, 505–506, 683 N.Y.S.2d 150, 705 N.E.2d 1191;see Matter of Chenier v. Richard W., 82 N.Y.2d 830, 832, 606 N.Y.S.2d 143, 626 N.E.2d 928;Matter of Anthony H. [Karpati], 82 A.D.3d 1240, 1241, 919 N.Y.S.2d 214). Therefore, we turn to the merits of this case.

On appeal, the Hospital contends that the Supreme Court erred in sustaining the writ and ordering the patient's release without holding a hearing to determine whether continued retention was warranted. The Hospital maintains that Mental Hygiene Law § 33.15, not CPLR article 70, applies to involuntary commitments, and, in any case, there is no substantive difference between the two statutes. MHLS responds that the Hospital improperly conflates the common-law writ of habeas corpus, as codified in CPLR article 70, with the procedure set forth in Mental Hygiene Law § 33.15 and that, pursuant to the common-law writ, discharge was the proper remedy for the Hospital's failure to comply with the time frames imposed by article 9 of the Mental Hygiene Law. MHLS urges that a contrary result would offend due process under both the New York and United States Constitutions.

Civil commitment for any purpose constitutes a significant deprivation of an individual's liberty that requires due process protection ( see Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323).Mental Hygiene Law § 9.33, which sets forth the procedure for a hospital to follow when seeking judicial authorization to retain an involuntarily hospitalized patient under article 9 of the Mental Hygiene Law, provides as follows:

“If the director of a hospital, in which a patient is retained pursuant to the foregoing subdivisions of this section, shall determine that the condition of such patient requires his further retention in a hospital, he [or she] shall, if such patient does not agree to remain in such hospital as a voluntary patient, apply during the period of retention authorized by the last order of the court to the supreme court or the county court in the county where the hospital is located for an order authorizing...