The application by Kaylin Willingham, Esq. of Mental Hygiene Legal Service for dismissal of a petition seeking retention of Howard G., a patient at New York-Presbyterian Hospital, on the ground of lack of jurisdiction is denied.

This matter was before this court on June 2, 2011 pursuant to an application by Howard G. for release from involuntary admission at New York-Presbyterian Hospital pursuant to Mental Hygiene Law § 9.31. Prior to the hearing, counsel for Howard G. made an oral application to dismiss the petition due to lack of jurisdiction. Two central issues arise herein: (1) whether respondent's motion to dismiss the petition to retain Howard G. due to lack of jurisdiction is procedurally valid and (2) whether the involuntary retention of Howard G. is proper despite the existence of an administrative error.

At the outset, it must be noted that respondent's oral application to dismiss on the ground of lack of jurisdiction is based on petitioner's undisputed noncompliance with requirements set forth in Mental Hygiene Law § 9.27. (Tr. 2). In order to apply for the involuntary retention of a patient, a psychiatric hospital must provide certificates of two examining physicians and a confirmation by a third physician who is a member of the hospital's psychiatric staff. Mental Hygiene Law § 9.27(a), (e). Here, petitioner admits to the existence of several errors in violation of such statutory requirements, primarily an incorrect patient's name whereby the clinician signing the application mistakenly indicated the patient's name as his own on a form that also included the actual patient's name. (Tr. 6) (" and this clinician also signed it, mistakenly at the top put [SIC] his own name ."). Therefore, because of the undisputed administrative error, this Court's role is to determine whether this error warrants dismissal of the hospital's petition for retention.

Respondent's motion was procedurally improper because it should have been brought under a separate habeas corpus petition. An individual retained by a facility is entitled to a writ of habeas corpus to question the cause and legality of detention upon proper application pursuant to Mental Hygiene Law § 33.15 (referring toC.P.L.R. Art.70). Under C.P.L.R. Art.70, a habeas corpus petition must state, or be accompanied by, an affidavit which states the nature of the illegality of the detention. C.P.L.R. § 7002 (c). In this case, the respondent raised the illegality [*2]of Howard G.'s detention by oral application at a Mental Hygiene Law § 9.31 retention hearing, not by the statutorily required petition. Accordingly, respondent's motion was procedurally improper.

Notwithstanding respondent's procedural error, the motion must still be denied. Defects in compliance with Mental Hygiene Law requirements do not warrant dismissal of a hospital's petition for retention or a patient's immediate discharge. See State ex rel. Karur ex rel. Karon G. v. Carmichael, 41 AD3d 349 (1st Dept. 2007) (holding that the lower court erred in directing the patient's immediate release, rather than deciding on the merits, due to violations of the rights afforded to him under the Mental Hygiene Law). In the case at bar, respondent argues for the release of Howard G. on the grounds of administrative inaccuracies in violation of Mental Hygiene Law § 9.27. Despite the statutory non-compliance, the motion must be denied.

Respondent, in her motion, erroneously relies on an Appellate Division Second Department case that has since been overruled by inference. Respondent cites In the Matter of Pilgrim Psychiatric Ctr., 197 AD2d 204 (2nd Dept. 1994) to support the argument that a hospital's failure to fully comply with the provisions of Mental Hygiene Law § 9.27 prevents the involuntary admission of a patient. The Second Department, however, has since held that minor defects in a mental health institution's petition do not warrant dismissal. See Rebecca Y. v. Brunswick Hall Psychiatric Ctr., 76 AD3d 1028 (2nd Dept. 2010) (holding that minor jurisdictional defect of incorrectly dated physician certifications in a mental health institution's petition did not warrant dismissal); see also People ex rel. Noel B. v. Jones, 230 AD2d 809 (2nd Dept. 1996)(holding that respondent's failure to comply with statutory procedures, although not condoned, did not require the respondent's retention application to be dismissed or the patient's discharge). Accordingly, respondent's reliance on outdated Second Department precedent is flawed.

Rather than dismissing the petition for retention based solely on statutory noncompliance, this court must consider the merits of the retention application. In light of the State's "interest in providing care to the mentally ill and in preventing violence to the mentally ill and others," a retention application must be considered on the merits. See Rebecca Y., 76 AD3d 1028, quoting, People ex rel. Noel B., 230 AD2d 809; accord State ex rel. Karur ex rel. Karon G. 41 AD3d 349. Additionally, Mental Hygiene Law § 33.15 (b) requires that habeas corpus petitions be "examine[d] [on] the facts concerning the person's alleged mental disability and detention." Here, the respondent's oral application to dismiss the hospital's petition seeking retention of Howard G. is based on administrative mere irregularities not amounting to fundamental defects, not on the merits. Accordingly, although the hospital's errors are troubling, the respondent's motion must be dismissed and whether Howard G. is in need of further retention must be assessed on the merits.

This opinion constitutes the decision and order of this court.

Dated: June 30, 2011 [*3]

________________________________________