This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 136
The People of the State of New
York ex rel. Lesley M. DeLia,
&c., on Behalf of SS.,
            Appellant,
        v.
Douglas Munsey,
            Respondent.




          Lisa Volpe, for appellant.
          Eric Broutman, for respondent.




STEIN, J.:
          In this appeal, we are asked to determine whether a
patient who is involuntarily committed under article 9 of the
Mental Hygiene Law and is unlawfully held beyond the authorized
retention period may seek a writ of habeas corpus under article
70 of the CPLR.   We answer this question in the affirmative,

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concluding that Mental Hygiene Law § 33.15 is not the exclusive
habeas corpus provision available to article 9 patients and does
not govern habeas corpus proceedings for those patients whose
detention is challenged for reasons other than the patient's
recovery.
                                 I.
            As relevant here, Mental Hygiene Law article 9 governs
the procedures and standards for the involuntary commitment of
mentally ill persons who are in need of in-patient care and
treatment but are unable to understand the necessity of such
treatment (see generally Mental Hygiene Law art 9).   Pursuant to
the Mental Hygiene Law, "[t]he director of a hospital may receive
and retain therein as a patient any person alleged to be mentally
ill and in need of involuntary care and treatment upon the
certificates of two examining physicians, accompanied by an
application for the admission of such person" executed by a
qualified person (id. § 9.27 [a]; see id. § 9.27 [b] [1] -
[10]).1   When a patient is involuntarily admitted, the facility
may hold that person for a limited period of time; if further



     1
        Mental Hygiene Law § 9.39 sets forth an alternative
procedure, to be used in emergency situations in which a person's
alleged mental illness "is likely to result in serious harm" to
that person or another and immediate observation and treatment is
appropriate (Mental Hygiene Law § 9.39 [a]). If retention beyond
a specified time frame is required, the procedures governing
admission and commitment pursuant to that section converge with
those governing admission upon medical certification under
section 9.33 (see id. § 9.39 [b]).

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                               - 3 -                            No. 136

retention is necessary, the director of the facility must apply
to the court for an order authorizing continued retention within
60 days of the admission (see id. § 9.33 [a]).     Upon request, the
patient is entitled to a hearing on the application for a
retention order (see id.).   Once an order retaining the patient
for a specific duration has been obtained, if the director
believes that it is necessary to retain the patient beyond that
time, the director "shall . . . apply during the period of
retention authorized by the last order of the court . . . for an
order authorizing further continued retention of such patient"
(id. § 9.33 [d] [emphasis added]).     The patient is, again,
entitled to appear before the court on such an application (see
id.).
          The Mental Hygiene Law presents several specific
avenues for a patient to challenge his or her retention.     For
example, Mental Hygiene Law § 9.31 allows the patient to request
a hearing prior to the expiration of the 60-day admission period
(see id. § 9.31 [a]).   Section 9.35 permits a patient to seek a
rehearing and review of a court's order of retention within 30
days of the making of such an order (see id. § 9.35).
Additionally, and central to the present dispute, Mental Hygiene
Law § 33.15 provides that "[a] person retained by a facility
. . . is entitled to a writ of habeas corpus to question the
cause and legality of detention upon proper application" (id. §
33.15 [a]).   This section requires the court to "examine the


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                               - 4 -                        No. 136

facts concerning the person's alleged mental disability and
detention," and the court may discharge the patient only "if it
finds that he [or she] is not mentally disabled or . . . in need
of further retention for in-patient care and treatment" (id. §
33.15 [b]).
          More generally, article 70 of the CPLR governs special
proceedings for a writ of habeas corpus, the historic common-law
writ that protects individuals from unlawful restraint or
imprisonment and provides a means for those illegally detained to
obtain release (see People ex rel. Duryee v Duryee, 188 NY 440,
445 [1907]).   CPLR 7001 provides that, "[e]xcept as otherwise
prescribed by statute, the provisions of . . . article [70] are
applicable to common[-]law or statutory writs of habeas corpus."
The CPLR does not specifically enumerate the circumstances in
which a writ may be sought beyond providing that "[a] person
illegally imprisoned or otherwise restrained in his [or her]
liberty within the state, or one acting on his [or her] behalf .
. . , may petition without notice for a writ of habeas corpus to
inquire into the cause of such detention and for deliverance"
(CPLR 7002 [a]).   "If the person is illegally detained a final
judgment shall be directed discharging him [or her] forthwith"
(CPLR 7010 [a] [emphasis added]).
                                II.
          In March 2012, Stephen S. was involuntarily admitted to
Holliswood Hospital upon two medical certifications averring


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that, as a result of his paranoid delusions, Stephen S. was
unable to care for himself and required mental health treatment.
In May 2012, the Hospital applied to Supreme Court for
authorization to continue his involuntary retention.   In June
2012, Supreme Court granted the application upon the parties'
consent, extending his retention for a period not to exceed three
months.   The Hospital thereafter failed to apply for court
authorization of its continued involuntary retention of Stephen
S. on or before the expiration date of the existing order, as was
required by Mental Hygiene Law § 9.33 (d).
          In October 2012, Mental Hygiene Legal Service commenced
this habeas corpus proceeding on behalf of Stephen S., seeking
his immediate release from the Hospital on the ground that he was
being illegally detained.   In response, the Hospital applied for
an order authorizing his continued involuntary retention for a
period of six months pursuant to Mental Hygiene Law § 9.33.      The
Hospital conceded that it had erroneously retained Stephen S.
without a court order for approximately six weeks, but it argued
that, under Mental Hygiene Law § 33.15, he could not be released
without a hearing and, then, only if the court found him to be
mentally fit for discharge.   Conversely, Stephen S. argued that
he was entitled to immediate release upon a writ of habeas corpus
under CPLR article 70.
          Supreme Court granted the writ and directed the
Hospital to discharge Stephen S., but stayed his discharge for


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                                - 6 -                        No. 136

five days in order to allow for appellate review.    In directing
the release of Stephen S., the court reasoned that holding a
hearing on his mental status would be a "non-remedy" for the
violation of his due process rights because such a hearing would
have been held had the Hospital filed a timely retention
application.    In other words, the court postulated that, if it
merely granted the Hospital such a hearing, the Hospital's
failure to follow the Mental Hygiene Law would have had no effect
on whether it could retain him without his consent.
            The Hospital appealed.   The Appellate Division, Second
Department, initially stayed enforcement of the judgment pending
its determination of the appeal (2012 NY Slip Op 90691[U] [2d
Dept 2012]) and, thereafter, reversed (117 AD3d 84 [2d Dept
2014]).    The Appellate Division determined that, although the
matter had been rendered moot by the discharge of Stephen S.
during the pendency of the appeal, the mootness exception
applied.    Despite the Hospital's failure to comply with the
Mental Hygiene Law, the Appellate Division held that Stephen S.
was not entitled to immediate release without a determination of
his mental fitness, reasoning that the habeas corpus petition was
governed by Mental Hygiene Law § 33.15, not CPLR article 70.
            Stephen S. appealed pursuant to CPLR 5601 (b) (1), and
we now reverse.2

     2
        In light of the Hospital's discharge of Stephen S., we
convert the proceeding to a declaratory judgment action (see
People ex rel. McManus v Horn, 18 NY3d 660, 666 [2012]; Mental

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                               - 7 -                          No. 136

                               III.
           The Hospital argues that Mental Hygiene Law § 33.15
governs all habeas corpus proceedings brought by article 9
patients and, therefore, a patient is not entitled to release
unless a determination is made that further involuntary treatment
is unnecessary.   The Hospital contends that section 33.15 should
be construed as the exclusive habeas corpus provision available
to article 9 patients because the more general CPLR article 70
habeas provisions must yield to the specific mandate of section
33.15.   According to the Hospital, such an interpretation is
consistent with principles of due process because involuntary
commitment of an individual is lawful so long as the individual
is in need of treatment -- without regard to whether the
procedures of the Mental Hygiene Law were followed.
           We disagree on all counts.   The construction of Mental
Hygiene Law § 33.15 advanced by the Hospital and our dissenting
colleague abrogates the common-law writ of habeas corpus for
mentally ill patients and is not supported by our case law, the
rules of statutory construction, or principles of due process.
As explained below, section 33.15 does not supplant the common-
law writ of habeas corpus available through CPLR article 70.
           Although article 70 governs the procedure of the
common-law writ of habeas corpus, "[r]elief from illegal
imprisonment by means of this remedial writ is not the creature


Hygiene Legal Servs. v Ford, 92 NY2d 500, 505 [1998]).

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                               - 8 -                        No. 136

of any statute" (People ex rel. Tweed v Liscomb, 60 NY 559, 565
[1875]).   As we have long emphasized, "the right to invoke habeas
corpus, 'the historic writ of liberty,' 'the greatest of all
writs'" is a "primary and fundamental" one (People v Schildhaus,
8 NY2d 33, 36 [1960]; see US Const, art I, § 9; NY Const, art I,
§ 4).   Due to its constitutional roots, "[t]his writ cannot be
abrogated, or its efficiency curtailed, by legislative action,"
except in certain emergency situations (People ex rel. Tweed, 60
NY at 566; see Hoff v State of New York, 279 NY 490, 492 [1939];
People ex rel. Sabatino v Jennings, 246 NY 258, 261 [1927]).
Moreover, statutes pertaining to the writ of habeas corpus must
be "construed in favor of, and not against, the liberty of the
subject and the citizen" (People ex rel. Tweed, 60 NY at 569; see
People ex rel. Perkins v Moss, 187 NY 410, 418 [1907]).
           CPLR 7001 provides that article 70 applies to common-
law and statutory writs of habeas corpus "[e]xcept as otherwise
prescribed by statute" (CPLR 7001).    However, nothing in the
plain language of Mental Hygiene Law § 33.15 purports to limit
the availability of the common-law writ in Mental Hygiene Law
proceedings.   Rather, section 33.15 enhances the efficacy of the
writ of habeas corpus, as our case law dictates, and thereby
ensures that patients are not committed and retained without due
process of law.   That is, Mental Hygiene Law § 33.15 allows
patients to seek a writ of habeas corpus when they are being held
pursuant to a court order but, nevertheless, believe they have


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                               - 9 -                         No. 136

sufficiently recovered from their mental illness so that their
continued retention is unwarranted; in such cases, determining
the legality of their retention would require an inquiry into
their mental state.   On the other hand, patients whose detention
is otherwise unauthorized may proceed under the habeas corpus
provisions of CPLR article 70 since the legality of their
detention can be determined on the basis of, for example, whether
the appropriate procedures have been followed, without the need
for a hearing into their mental state.
          This interpretation -- which reads section 33.15 and
article 70 consistently with one other -- accords with the rules
of statutory construction (see generally Matter of Dutchess
County Dept. of Social Servs. v Day, 96 NY2d 149, 153 [2001]
["Statutes which relate to the same subject matter must be
construed together unless a contrary legislative intent is
expressed"]; People v Epton, 19 NY2d 496, 505 [1967]).   Most
significantly, it preserves the availability of the great writ of
habeas corpus (see People ex rel. Perkins, 187 NY at 418; People
ex rel. Tweed, 60 NY at 569; see also Schildhaus, 8 NY2d at 36
["the right to invoke habeas corpus . . . is so primary and
fundamental that it must take precedence over considerations of
procedural orderliness and conformity"]).   By contrast, the
Hospital's reading of section 33.15 would effectively eliminate
the availability of the writ for patients wishing to challenge
the procedural methods by which they have been involuntarily


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                              - 10 -                          No. 136

retained and to obtain release from an unlawful detention.      Such
diminution of the great writ is impermissible (see People ex rel.
Sabatino, 246 NY at 261; People ex rel. Tweed, 60 NY at 566; see
also Mental Hygiene Law § 33.01; People ex rel. Thorpe v Von
Holden, 63 NY2d 546, 554 [1984] [habeas corpus proceeding
available to criminal offenders found not guilty by reason of
mental disease or defect and committed to the custody of the
Commissioner of Mental Health where statutory time schedule was
not followed]).
          This is not the first time we have sanctioned a
patient's use of a writ of habeas corpus to obtain release where
a facility failed to follow the appropriate procedures to
lawfully retain the individual (see e.g. People ex rel. Jacobs v
Director of Gowanda State Hosp., 14 NY2d 663, 665 [1964], affg 19
AD2d 858, 858 [4th Dept 1963]; People ex rel. Granskofski v
Whitehead, 8 NY2d 962, 963 [1960], affg 10 AD2d 801, 801 [4th
Dept 1960]).   Indeed, the express extension of the writ to
involuntarily committed patients who have become mentally fit for
discharge -- rather than curtailment of the writ -- has long been
considered the purpose of section 33.15 and its predecessor
provisions (see Matter of Coates, 9 NY2d 242, 246 [1961] [noting
that a patient may pursue discharge under Mental Hygiene Law
habeas provision "at any time" upon ground that "the patient is
sane"]; People ex rel. Sabatino, 246 NY at 261 [indicating that
the question under section 93 of the Insanity Law, from which


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                              - 11 -                        No. 136

section 33.15 of the Mental Hygiene Law is derived, "is whether
one lawfully committed to an asylum has thereafter become sane"];
People ex rel. Ledwith v Bd. of Trustees of Bellevue & Allied
Hospitals, 238 NY 403, 408 [1924] [where hospital failed to
timely follow procedures, the patient "was entitled to the writ
of habeas corpus, either under section 93 of the Insanity Law or,
if that be inapplicable, under article 77 of the Civil Practice
Act relating to habeas corpus"]; Matter of Andrews, 126 AD 794,
799-800 [1st Dept 1908] ["In addition to the remedy for a
discharge on writ of habeas corpus in case the detention is
without lawful process, the Legislature . . . expressly extended
the writ of habeas corpus to cases of lawful commitments of
persons as insane who have subsequently, while held under such
lawful commitments, recovered their reason"]).   As these cases
make clear, section 33.15 does not govern habeas proceedings
where the right to release is premised upon unlawful process.
           The dissent suggests that "there is no rational reason
that Mental Hygiene Law § 33.15 does not apply" in habeas
proceedings alleging an unauthorized retention (dissenting op.,
at 3).   Yet, in addition to contravening the purpose of the
historic writ, ratification of the Hospital's interpretation of
section 33.15 would undermine the procedural due process
protections guaranteed by the various provisions of the Mental
Hygiene Law requiring notice and regular judicial review in
connection with a patient's commitment (see generally Epton, 19


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                              - 12 -                          No. 136

NY2d at 505).   It is beyond dispute that "[t]he state 'has
authority under its police power to protect the community from
the dangerous tendencies of some who are mentally ill,'" and that
it "may rely on its parens patriae power to provide care to its
citizens who are unable to care for themselves because of mental
illness" (Matter of K.L., 1 NY3d 362, 370 [2004], quoting
Addington v Texas, 441 US 418, 426 [1979]).   Nevertheless, it has
long been recognized that involuntary civil commitment involves a
"'massive curtailment of liberty'" (Vitek v Jones, 445 US 480,
491 [1980], quoting Humphrey v Cady, 405 US 504, 509 [1972]) and,
"therefore, [it] cannot permissibly be accomplished without due
process of law" (Rodriguez v City of New York, 72 F3d 1051, 1061
[2d Cir 1995]; see Savastano v Nurnberg, 77 NY2d 300, 307
[1990]).   Thus, contrary to the Hospital's contention, a patient
may be involuntarily committed only where the standards for
commitment and the procedures set forth in the Mental Hygiene Law
-- which satisfy the demands of due process -- are met (see
Matter of K.L., 1 NY3d at 371; Project Release v Prevost, 722 F2d
960, 971 [2d Cir 1983]; see generally Savastano, 77 NY2d at 305-
309 [recognizing that the Mental Hygiene Law procedures and
regulations provide a "network of procedural safeguards" for "the
due process rights of those involuntary patients"]).   This is not
to say that every violation of the Mental Hygiene Law amounts to
a due process violation or will entitle a patient to a writ of
habeas corpus but, "[w]ithout a court order of continued


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                               - 13 -                       No. 136

retention [in accordance with the Mental Hygiene Law], or the
consent of the patient, the hospital must release the patient"
(Project Release, 722 F2d at 967; see People ex rel. Tweed, 60 NY
at 569 ["The law is no respecter of persons, and suffers no
[person] . . . to be deprived of his [or her] liberty, except 'by
due process of law,' and the writ of habeas corpus is as
available   . . . [to] he [or she] whom the popular voice would
condemn"]).
            The dissent's statement that "patients will still
receive the procedural protections required by due process" if
Mental Hygiene Law § 33.15 applies in a case such as this
overlooks the fact that patients who are seeking a common-law
writ under CPLR article 70 are alleging that they have already
been deprived of due process by virtue of a violation of the
procedural protections of the Mental Hygiene Law (dissenting op.,
at 5).   Thus, a conclusion that section 33.15, with its required
hearing to determine the patient's mental status, is the
exclusive habeas corpus avenue available to article 9 patients
would permit the flagrant disregard -- either deliberately or
through laxity -- of the due process protections provided
throughout the Mental Hygiene Law, and there would be no
effective remedy available to a patient for a facility's failure
to comply with even the most basic of the statutory procedural
requirements.    Indeed, implicit in the dissent's assertion that
application of section 33.15 does not violate the due process


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                              - 14 -                          No. 136

rights of a patient who establishes that his or her detention is
unauthorized by the court or the Mental Hygiene Law, is the
dissent's conclusion that an article 9 patient has no enforceable
due process rights so long as there exists proof that he or she
could benefit from further treatment, regardless of whether that
proof is presented six weeks or a matter of years after
expiration of the court order authorizing the patient's
retention.   Such a view of section 33.15 would essentially
nullify the procedural due process protections contained in other
provisions of the Mental Hygiene Law, which are already defined
by reference to the rights and interests at stake (see generally
Savastano, 77 NY2d at 307).   Moreover, under the dissent's
reading, by failing to seek continued retention under section
9.33, thereby prompting the patient to seek a writ of habeas
corpus, in cases such as this -- where the patient's application
is based on the facility's inaction -- the Hospital would be able
to shift the burden of proof to the patient to demonstrate his or
her fitness in order to obtain release pursuant to section 33.15
(see Matter of Mental Hygiene Legal Servs. ex rel. James U. v
Rhodes, 195 AD2d 160, 162 [3d Dept 1994]; Matter of Winslow v
O'Neill, 153 AD2d 563, 564 [2d Dept 1989]).   We cannot
countenance, and the Legislature surely did not intend, an
interpretation of section 33.15 that would render meaningless
such significant protections as are provided in Mental Hygiene
Law article 9.


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                              - 15 -                        No. 136

           In sum, we declare that Mental Hygiene Law § 33.15 does
not preclude use of the writ of habeas corpus under CPLR article
70.   Rather, Mental Hygiene Law § 33.15 merely clarifies that an
article 9 patient is entitled to bring a habeas proceeding where
the commitment is authorized, but the patient believes that he or
she has sufficiently recovered to be released.   If a facility is
of the opinion that a patient requires further treatment
notwithstanding having been granted a writ of habeas pursuant to
CPLR article 70 following an illegal detention, it is incumbent
upon the facility to commence a new article 9 proceeding in
compliance with the strictures of the Mental Hygiene Law (compare
People ex rel. Thorpe, 63 NY2d at 555).   The Hospital's remaining
arguments are unavailing.   Accordingly, the order of the
Appellate Division should be reversed, without costs, the habeas
corpus proceeding converted into a declaratory judgment action,
and judgment granted in accordance with this opinion.




                              - 15 -
The People of the State of New York ex rel. Lesley M. Delia,
as Director of Mental Hygiene Legal Services, on behalf of SS.
v Douglas Munsey

No. 136 - SAS




ABDUS-SALAAM, J.(dissenting):
          The majority holds that a mentally ill patient who was
involuntarily committed under Article 9 of the Mental Hygiene Law
based on a court's determination that he was a danger to himself
and to others, should be released without a hearing to determine
the status of his mental disability when a retention order has
expired, despite the hospital's proffer of evidence that the
patient remains a peril.   Indeed, the majority believes that even
a mentally ill dangerous person must be automatically released,
solely because the hospital, due to administrative oversight,
failed to timely file an application seeking the patient's
further retention pursuant to Mental Hygiene Law § 9.33.
          The majority reaches this ominous and untenable
conclusion in spite of the plain language of Mental Hygiene Law
§33.15 which expressly directs that where a person retained by a
facility brings a writ of habeas corpus to question the cause and
legality of his or her detention, "a court shall examine the
facts concerning the person's alleged mental disability and
detention (emphasis added)." The majority declares that Mental
Hygiene Law § 33.15 neither applies upon the filing of a writ of
habeas corpus nor requires the court to examine the facts

                                - 1 -
                               - 2 -                          No. 136

concerning a person's mental condition prior to release.      This
proclamation is incongruous on its own terms, and the reasoning
behind it is perplexing.   By the majority's rationale, adherence
to the statute is not required in cases such as this one because
the statute does not in so many words expressly supplant the
common-law writ of habeas corpus in the context of detentions
under Mental Hygiene Law article 9.    But surely that cannot be
true, if "shall" means "is required to" (Black's Law Dictionary,
10th ed. 2014, shall).   To the contrary, the statute on its face
absolutely requires a factual determination of the patient's
mental state and fitness for release "upon the return of such a
writ of habeas corpus," and that unqualified statutory command is
incompatible with the majority's decision to grant automatic
release to patients upon the filing of a common-law habeas writ.
Because the majority declines to follow the unambiguous language
of the statute or acknowledge its clear practical purpose, I must
respectfully dissent.
           The majority's analysis is based on the premise that
the habeas corpus provision of the Mental Hygiene Law "does not
supplant the common-law writ of habeas corpus available through
CPLR article 70" (majority op., at 7) because the Mental Hygiene
Law §33.15 habeas provision applies only where patients are being
held pursuant to a lawful order of retention and seek an early
release.   However, the statute, on its face, applies to a person
retained who brings a writ of habeas corpus.    It does not


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                              - 3 -                           No. 136

restrict this provision only to cases where a patient is lawfully
retained and seeks an early release.   Thus, the majority's
conclusion flies in the face of the clear, unambiguous language
of Mental Hygiene Law § 33.15, and runs afoul of the well-settled
canon that "[t]he Legislature is presumed to mean what it says,
and if there is no ambiguity in the act, it is generally
construed according to its plain terms" (McKinney's Cons. Laws of
New York, Book 1, Statutes § 94).
          In my view, there is no rational reason to determine
that Mental Hygiene Law § 33.15 does not apply in this instance,
and thereby conclude that without any review by the court, and
over objection by the hospital, a patient involuntarily retained
must be released solely because a hospital has failed to comply
with the statutory requirements of the Mental Hygiene Law.
Courts have held to the contrary, and for good reason (see e.g.
State of N.Y. ex rel. Karur v Carmichael, 41 AD3d 349 [1st Dept
2007][although hospital failed to respond to patient's request
for a hearing challenging his commitment pursuant to Mental
Hygiene Law § 9.31 and failed to timely apply for continued
retention, granting of writ of habeas corpus and directing
immediate release was error and matter remanded for a hearing
pursuant to Mental Hygiene Law § 33.15]; see also State ex rel.
Harkavy v Consilvio (29 AD3d 221, 227 [1st Dept 2006], rev on
other grounds 7 NY3d 607 [2006][Mental Hygiene Law § 33.15,
"which is directed exclusively to those retained in psychiatric


                              - 3 -
                               - 4 -                         No. 136

facilities," is more specific than CPLR article 70 "and thus
controlling in these mental hygiene cases (citations omitted"];
People ex rel. Noel B. v Jones (230 AD2d 809 [2d Dept 1996][upon
habeas petition brought by patient whose involuntary commitment
order had expired, court required to conduct hearing to determine
patient's mental status despite the hospital's failure to comply
with two statutory deadlines]).1   The patient in this case,
Stephen S., who is schizophrenic, had been hospitalized on
several prior occasions for psychosis before he was involuntarily
admitted to Holliswood Hospital. During his six- month admission,
he struck and threatened staff members and patients numerous
times, stabbed a staff member in the neck with a pen, assaulted
his mother and attacked and choked his treating psychiatrist.
Yet, because the hospital inadvertently missed the deadline for
filing a retention application, the majority concludes that a
court must grant his habeas petition without any consideration of
his mental condition.   This does not advance the treatment and
care of the mentally ill patient or protect society from one who
poses a danger to others.
          Holding a hearing upon return of the writ of habeas


     1
      This Court's terse opinions cited by the majority (People
ex rel. Jacobs v Director of Gowanda State Hosp., 14 NY2d 663,
665 [1964], affg 19 AD2d 858, 858 [4th Dept 1963]; People ex rel.
Granskofski v Whitehead, 8 NY2d 962, 963 [1960], affg 10 AD2d
801, 801 [4th Dept 1960]), for the proposition that a patient may
use a writ of habeas corpus to obtain release where a facility
failed to follow appropriate procedures do not analyze the issue
presented here.

                               - 4 -
                               - 5 -                        No. 136

corpus will not "effectively eliminate the availability of the
writ" (majority op., at 10) for patients who seek to obtain
release from an unlawful detention.    Such patients will still
receive the procedural protections required by due process.    As
this Court noted in Savastano v Nurnberg (77 NY2d 300 [1990]):
           "Although there can be no doubt that an
           involuntarily admitted mentally ill patient
           does not abandon his or her constitutional
           rights at the facility door, it is equally
           true that the procedural protections required
           by due process must be determined with
           reference to the rights and interests at
           stake" (internal citations omitted)(77 NY2d
           at 307).
The rights and interests of a mentally ill person who is
dangerous, and who requires continued involuntary commitment,
will only be promoted by such a hearing.    Thus, contrary to the
majority's conclusion, adherence to the mandate of Mental Hygiene
Law §   33.15 does in fact provide a patient with an effective
remedy.   If the patient should no longer be retained, he/she will
be immediately released upon return of the writ.    Requiring a
hearing regarding the patient's mental status, does not, as
suggested by the majority, somehow facilitate or encourage a
hospital's flagrant disregard for the due process protections
embodied in the Mental Hygiene Law (majority op., at 13).
Rather, it protects the patient and the public.
           Furthermore, contrary to the majority's supposition,
holding a hearing where a hospital brings a retention application
in response to a patient's habeas petition would not shift the


                               - 5 -
                               - 6 -                        No. 136

burden of proof to the patient.   Where a hospital seeks to retain
a person for involuntary psychiatric care, "it must demonstrate,
by clear and convincing evidence, that the patient is mentally
ill and in need of continued, supervised care and treatment, and
that the patient poses a substantial threat of physical harm to
himself and/or others"(New York City Health and Hospitals Corp.,
v Brian H., 51 AD3d 412, 415 [2008]). The cases cited by the
majority for this "burden shifting" concern are inapposite as
they involve situations different from the one here. Matter of
Mental Hygiene Legal Servs. ex rel. James U. v Rhodes (95 AD2d
160, 162 [3d Dept 1994]) involved a patient who pleaded not
responsible by reason of mental disease or defect to charges of
attempted murder and reckless endangerment, was detained pursuant
to a two-year retention order, and who sought early release. In
Matter of Winslow v O'Neill (153 AD2d 563, 564 [2d Dept 1989]), a
patient who was subject to a six-month retention order sought
release prior to the expiration of the court order authorizing
retention, but failed to submit any medical evidence to rebut the
outstanding retention order that determined he was in need of in-
patient care and treatment.   Thus, in both of those cases, the
patient was seeking to show that his mental condition had changed
since the court had ordered him retained, whereas in this
situation, there is no longer any court order in effect
determining that the person required involuntary commitment.
          In sum, the logical and plain interpretation of Mental


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                                - 7 -                           No. 136

Hygiene Law § 33.15 is that the legislature intended that a
mentally ill person who poses a danger to himself and/or to
others would not be released without court review even under
circumstances where the person's commitment order had expired.
Accordingly, I would affirm.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, without costs, the habeas corpus proceeding
converted into a declaratory judgment action, and judgment
granted in accordance with the opinion herein. Opinion by Judge
Stein. Chief Judge Lippman and Judges Pigott, Rivera and Fahey
concur. Judge Abdus-Salaam dissents and votes to affirm in an
opinion.

Decided October 22, 2015




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