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OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD.

The Third Department determined claimant’s negligence suit against the state Office of Mental Retardation and Developmental Disabilities (OMRDD) was properly dismissed because the OMRDD’s oversight of private companies providing care to the developmentally disabled was a government function and there was no special relationship with the resident, claimant’s daughter. Therefore the state was immune from suti. Claimant alleged the resident was abused while in the care of Camary Statewide Services, a private, nonprofit corporation that was, at that time, certified by the OMRDD:

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OMRDD conducted annual or biannual reviews, which included a sampling of records and interviews of staff members and residents, to determine whether Camary continued to be eligible for an operating certificate to provide care and treatment to developmentally disabled individuals … . Where noncompliance was discovered, OMRDD could require private service providers to take corrective measures to address the deficiency or, where the noncompliance was severe, revoke, suspend or limit the service provider’s operating certificate … . In the event of noncompliance, OMRDD would provide guidance to the service provider, but it would not take affirmative steps to bring the provider into compliance with the applicable regulations. Moreover, OMRDD’s oversight over, and regulation of, Camary was plainly undertaken to further the general goal of protecting the health and safety of persons with developmental disabilities. Based on the foregoing, we conclude that the actions, or inactions, in question were governmental in nature … . * * *

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… [C]laimant argues that the requisite special relationship was formed by OMRDD’s violation of Mental Hygiene Law former § 13.07 (c) … , as well as the reporting rules in 14 NYCRR former part 624 … . As relevant here, Mental Hygiene Law former § 13.07 (c) …  charged OMRDD with ensuring that the care and treatment provided to persons with developmental disabilities were of high quality and that the personal and civil rights of persons receiving such care and treatment were protected. As for the reporting rules, OMRDD promulgated detailed regulations requiring that reportable incidents, which included instances in which a resident sustained an injury requiring more than first aid, be recorded and investigated by the service provider under a defined procedure, subject to review by OMRDD. Undoubtedly, these statutory and regulatory provisions were enacted for the benefit of persons with developmental disabilities, a class within which the resident certainly falls.

However, no private right of action is expressly created by the implementing statute and the relevant regulations and, contrary to claimant’s contentions, one may not be fairly implied. T.T. v State of New York, 2017 NY Slip Op 04940, 3rd Dept 6-15-17

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NEGLIGENCE (GOVERNMENTAL IMMUNITY, DEVELOPMENTALLY DISABLED, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/IMMUNITY (OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (IMMUNITY, OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/MENTAL HYGIENE LAW (DEVELOPMENTALLY DISABLED, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)/DEVELOPMENTALLY DISABLED (NEGLIGENCE, IMMUNITY,  OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES (OMRDD) WAS IMMUNE FROM A NEGLIGENCE SUIT ALLEGING ABUSE OF A DISABLED RESIDENT WHILE IN THE CARE OF A COMPANY CERTIFIED BY THE OMRDD)

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CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined petitioner sex offender’s motion for a change of venue for the annual review of his civil commitment under Article 10 should have been granted. The change was sought to allow petitioner’s mother to testify:

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In this annual review proceeding pursuant to Mental Hygiene Law § 10.09, petitioner appeals from an order that, inter alia, denied that part of his motion seeking a change of venue to New York County for the convenience of witnesses … . Petitioner was previously determined to be a dangerous sex offender requiring civil confinement and confined to a secure treatment facility … . He is currently confined at the Central New York Psychiatric Center in Oneida County. We now grant that part of the motion seeking a change of venue.

The court may change the venue of an annual review proceeding” to any county for good cause, which may include considerations relating to the convenience of the parties or witnesses or the condition of the [confined sex offender]’ ” … . We agree with petitioner that Supreme Court improvidently exercised its discretion in denying his motion inasmuch as the proposed testimony of his mother, who lives in New York County, is “relevant to the issue of whether petitioner remained a dangerous sex offender in need of confinement” … . Although respondent correctly notes that the subjects of the mother’s proposed testimony also may be the subjects of expert testimony, “[t]he pertinent question is whether a witness—expert or lay—has material and relevant evidence to offer on the issues to be resolved” … . We agree with petitioner that his mother’s proposed testimony concerning his stated goals and priorities, likely living arrangements, and the availability and extent of a familial support system in the event of release, is material and relevant to the issue whether he “is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” … . Matter of Charada T. v State of New York, 2017 NY Slip Op 03379, 4th Dept 4-28-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/SEX OFFENDERS (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/CIVIL COMMITMENT (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)/VENUE (MENTAL HYGIENE LAW, CHANGE OF VENUE TO ALLOW PETITIONER’S MOTHER TO TESTIFY SHOULD HAVE BEEN GRANTED)

15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS.

The First Department determined the 15-month delay in holding respondent sex-offender’s Article 10 trial did not deprive him of due process. The court explained that the statutory 60-day time limit for holding the trial did not require dismissal of the petition and further explained and applied the four-point due process analysis:

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The 60-day deadline by which a trial “shall” be commenced, pursuant to Mental Hygiene Law § 10.07(a), is not a “strict time limit[]” … . As there is no clear legislative intent to make compliance with that time frame a prerequisite to continued jurisdiction … , the failure to commence a trial within 60 days does not mandate dismissal of the petition … . Article 10 of the Mental Hygiene Law (MHL) states repeatedly that failure to comply with various deadlines does not affect the validity of the petition or the various actions subject to those deadlines … . …

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Respondent’s due process rights were not violated by the 15-month delay between his declaration of readiness for trial, after the probable cause determination, made upon his waiver of a probable cause hearing, and the start of the trial. Under the four-factor balancing test set forth in Barker v Wingo (407 US 514 [1972] … , the length of the delay may be considered presumptively prejudicial … . The second factor, the reason given for the delay (id. at 531), weighs only slightly against petitioner, because a considerable portion of the delay is attributable to respondent, the unavailability of the experts, and circumstances beyond petitioner’s control. …

The third Barker factor, respondent’s assertion of his rights (407 US at 531-532), weighs in respondent’s favor with respect to those adjournments to which he objected. However, his failure to retain any experts for, or to testify in, the article 10 proceedings, his consent to delays, his refusal to appear in court twice, and his engagement in abusive conduct directed against those associated with the proceeding suggest that respondent “did not desire an early judicial hearing” … . …

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The fourth Barker factor, prejudice to respondent (407 US 532), weighs in petitioner’s favor. There was no oppressive pretrial incarceration, since respondent chose to be confined at Rikers Island, rather than at a secure mental health facility, during the proceedings … , and respondent’s ability to put on a defense was not affected by the delay. Matter of State of New York v Keith F., 2017 NY Slip Op 03276, 1st Dept 4-27-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, 15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS)/SEX OFFENDERS (MENTAL HYGIENE LAW, 15 MONTH DELAY IN ARTICLE 10 TRIAL DID NOT DEPRIVE RESPONDENT OF DUE PROCESS)

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SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS.

The Second Department determined a respondent in a Mental Hygiene Law article 10 proceeding (re: civil commitment of sex offenders) has a right to effective assistance of counsel (not usually the case in a civil proceeding). Respondent’s writ of error coram nobis, alleging ineffective assistance, however, was denied on the merits:

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Generally, in the context of civil litigation, an attorney’s errors or omissions are binding on the client and a claim of ineffective assistance of counsel will not be entertained in the absence of extraordinary circumstances … . However, a respondent in a Mental Hygiene Law article 10 proceeding has a statutory right to counsel …  and, as in proceedings pursuant to the Sex Offender Registration Act (Correction Law art 6-C) and certain Family Court proceedings, the consequences of an unfavorable determination in these particular civil proceedings are uniquely severe … . Indeed, a respondent in a Mental Hygiene Law article 10 proceeding “arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite, and can last the remainder of a respondent’s life” … . Further, a respondent’s statutory right to counsel in a Mental Hygiene Law article 10 proceeding would be eviscerated if counsel were ineffective… .  Thus, a claim of ineffective assistance of counsel may be raised in a Mental Hygiene Law article 10 proceeding … . Matter of State of New York v Wayne J., 2017 NY Slip Op 02798, 2nd Dept 4-12-17

MENTAL HYGIENE LAW (SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/ATTORNEYS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)/SEX OFFENDERS (MENTAL HYGIENE LAW, SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS)

PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD.

The Second Department determined the sex offender did not validly waive his right to a jury trial. Although there was evidence he intended to waive a jury trial (emails) there was no on-the-record waiver:

The State moves to enlarge the record on appeal to include emails from the appellant’s trial counsel which, the State contends, demonstrate that the appellant validly waived his right to a jury trial. However, in Matter of State of New York v Ted B. (132 AD3d 28), we held that a respondent in a Mental Hygiene article 10 proceeding may validly waive the right to a jury trial only where an on-the-record colloquy shows that the respondent made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney. As an alternative to a personal appearance in court, a respondent may participate in such a colloquy via video conferencing  … . While the State urges us to find a valid waiver based on emails from the appellant’s trial counsel, such off-the-record communications, regardless of content, are insufficient to ensure that a respondent’s decision to “forgo his [or her] state constitutional and statutory right to a jury trial is the product of an informed and intelligent judgment and, thereby, protect the important liberty interests at stake in article 10 proceedings'” … . Matter of State of New York v Jesus M., 2017 NY Slip Op 01557, 2nd Dept 3-1-17

MENTAL HYGIENE LAW (PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)/JURY TRIAL (MENTAL HYGIENE LAW, PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)

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SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION.

The Second Department determined Supreme Court should not have dismissed a petition for civil management of a sex offender (Ezekial R) for failure to state a cause of action:

The Supreme Court, relying on Matter of State of New York v Donald DD. (24 NY3d 174), dismissed the State of New York’s petition for the civil management of Ezikiel R. on the ground that it failed to state a cause of action. This was error. It is true that a diagnosis of antisocial personality disorder does not, by itself, “distinguish the sex offender whose mental abnormality subjects him to civil commitment from the typical recidivist convicted in an ordinary criminal case” … . Here, however, the petition alleges a mental abnormality based on a composite diagnosis of antisocial personality disorder and psychopathy, and is supported by expert evidence containing an additional diagnosis of conduct disorder, a provisional diagnosis of sexual sadism disorder, and a determination that Ezikiel R.’s actions were suggestive of his potential for deviant sexual behavior and/or sexual preoccupation. Under these circumstances, the petition was facially valid and not subject to dismissal prior to a probable cause hearing … . Although the court at a probable cause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture … . Matter of State of New York v Ezikiel R., 2017 NY Slip Op 01213, 2nd Dept 2-15-17

MENTAL HYGIENE LAW (SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)/SEX OFFENDERS (MENTAL HYGIENE LAW, SUPREME COURT SHOULD NOT HAVE DISMISSED PETITION FOR CIVIL MANAGEMENT OF A SEX OFFENDER FOR FAILURE TO STATE A CAUSE OF ACTION)

COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT CALCULATED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION.

The First Department determined Supreme Court properly set the compensation for a guardian (Goldstein) who served for about a month at $100,000, rejecting the guardian’s request for about $700,000. The Mental Hygiene Law requires only “reasonable” compensation, and does not require use of the compensation formula set out in the Surrogate’s Court Procedure Act (SPCA):

… [A]lthough the Mental Hygiene Law, as originally enacted, encouraged courts to consider a compensation plan similar to the guidelines set forth in the SCPA after the statute was amended in 2004, all references to the SCPA were eliminated. The Mental Hygiene Law does not provide any formula or guideline for the court to follow in setting compensation for an Article 81 guardian, nor does it refer to such compensation as a “commission.” * * *

… [W]e reject Goldstein’s argument that the court was required to find misfeasance or misconduct on his part in order to deny him a full commission calculated under the SCPA. Under the Mental Hygiene Law, Goldstein is entitled to no more than “reasonable compensation” for his services, and there is no mathematical formula in the mental hygiene law that the motion court failed to apply or disregarded. A court may, and in this case did, with respect to Goldstein’s services as temporary guardian, choose to compensate a guardian in quantum meruit, using an hourly rate … . Whether using the hourly rate approved by the court of $350 per hour or using his usual hourly rate of $495, Goldstein was well compensated for his time … . Matter of Goldstein v Zabel, 2017 NY Slip Op 00426, 1st Dept 1-24-17

 

MENTAL HYGIENE LAW (COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)/GUARDIANSHIP (MENTAL HYGIENE LAW, COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)/SURROGATE’S COURT PROCEDURE ACT (GUARDIANSHIP, MENTAL HYGIENE LAW, COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT FIGURED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION)

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PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS.

The Second Department, in affirming the verdict requiring the civil confinement of appellant as a dangerous sex offender, determined the records of appellant’s sex offender treatment in prison were properly released to the attorney general and properly used by the state’s psychiatric experts:

Supreme Court did not err in permitting the petitioner’s experts to testify regarding certain communications made by the appellant in the context of sex offender treatment he received in prison. The appellant correctly argues that the language of a limited waiver of confidentiality he signed before receiving sex offender treatment did not permit disclosure of his treatment records to the Attorney General for a trial under Mental Hygiene Law article 10. However, the appellant concedes that his sex offender treatment records were properly disclosed to the Attorney General and the Attorney General’s experts pursuant to Mental Hygiene Law § 10.08(b) and (c). By granting the Attorney General access to a sex offender’s relevant treatment records “notwithstanding any other provision of law,” and by specifying that the psychiatric examiners chosen by the Attorney General be given access to such records, the Legislature expressed its intent that otherwise privileged sex offender treatment records could be used by these parties in the adversarial stage of an article 10 proceeding … . Matter of State of New York v Justin D., 2016 NY Slip Op 08241, 2nd Dept 12-7-16

MENTAL HYGIENE LAW (PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/EVIDENCE (MENTAL HYGIENE LAW, PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)/SEX OFFENDERS MENTAL HYGIENE LAW, ​PRISON SEX OFFENDER TREATMENT RECORDS PROPERLY TURNED OVER TO THE ATTORNEY GENERAL AND PROPERLY USED BY THE STATE’S PSYCHIATRIC EXPERTS)

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CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED.

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined petitioner psychiatric hospital did not present sufficient evidence to support an order permitting involuntary treatment of respondent for schizophrenia. The Third Department heard the appeal as an exception to the mootness doctrine (the involuntary treatment order had already expired):

The exception to the mootness doctrine applies where an issue (1) could readily recur, (2) will typically evade review, (3) is of public importance and (4) represents a substantial and novel issue yet to be decided by this Court … . As pointed out in respondent’s brief, there were 322 applications for authorization to forcibly treat patients who are within the Third Department during 2014 — a contention that adequately demonstrates that proceedings of this nature will readily recur. Since the duration of these orders is tied into the treatment of the patient, who may, as here, be discharged before an appeal is even perfected, we agree that these proceedings do typically evade review … . And, certainly, the proceeding is of public importance because it implicates a patient’s “fundamental liberty interest to reject antipsychotic medication” … . * * *

What we find significant and novel here is how that standard is to be met by a petitioner and applied by the trial court with respect to the formulation of a medication treatment plan, and, for that reason, we will address the merits of the appeal .. .

The fundamental flaw established by this record is that the scope of medications authorized by Supreme Court was overbroad — a flaw conceded by petitioner. The order actually authorized the use of 28 various medications, including medications for symptoms and illnesses that respondent did not have. …

This point implicates the secondary problem presented in that Supreme Court failed to make specific findings on the record as to respondent’s capacity and the viability of the treatment plan. Matter of Lucas QQ. (Lucas QQ.), 2016 NY Slip Op 07904, 3rd Dept 11-23-16

 

MENTAL HYGIENE LAW (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/APPEALS (CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)/INVOLUTARY TREATMENT (MENTAL HYGIENE LAW, CRITERIA FOR EXCEPTION TO THE MOOTNESS DOCTRINE EXPLAINED, INVOLUNTARY TREATMENT ORDER REVERSED)

SEX OFFENDER’S PETITION TO TERMINATE STRICT AND INTENSIVE SUPERVISION AND TREATMENT SHOULD HAVE BEEN GRANTED.

The Second Department determined a sex offender’s petition to terminate his strict and intensive supervision and treatment (SIST) should have been granted:

… [T]he State … failed to establish by clear and convincing evidence that the appellant had “serious difficulty in controlling” himself from committing sex offenses within the meaning of Mental Hygiene Law § 10.03(i). The only evidence in the record was that, while the appellant had a long history of committing sex offenses, the appellant had not committed any offense since 2002, had complied with all of his SIST requirements, and had been successful in treatment, where he learned and used skills and modalities to help him control himself from engaging in criminal sexual conduct … . Matter of State of New York v (Anonymous), 2016 NY Slip Op 06717, 2nd Dept 10-12-16

MEMTAL HYGIENE LAW (SEX OFFENDER’S PETITION TO TERMINATE STRICT AND INTENSIVE SUPERVISION AND TREATMENT SHOULD HAVE BEEN GRANTED)/SEX OFFENDERS (SEX OFFENDER’S PETITION TO TERMINATE STRICT AND INTENSIVE SUPERVISION AND TREATMENT SHOULD HAVE BEEN GRANTED)/STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SEX OFFENDER’S PETITION TO TERMINATE STRICT AND INTENSIVE SUPERVISION AND TREATMENT SHOULD HAVE BEEN GRANTED)

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