Besunder v. Coughlin

• Decision Date: 15 October 1979
• Citation: 422 N.Y.S.2d 564,102 Misc.2d 41
• Parties: Alfred BESUNDER, Director, Mental Health Information Service, etc., Petitioner, v. Thomas COUGHLIN, Commissioner of New York State Office of Mental Retardation, etc., et al., Respondents.
• Court: New York Supreme Court

Page 564

422 N.Y.S.2d 564

102 Misc.2d 41

Alfred BESUNDER, Director, Mental Health Information Service, etc., Petitioner, v. Thomas COUGHLIN, Commissioner of New York State Office of Mental Retardation, etc., et al., Respondents.

Supreme Court, Nassau County, Special Term, Part I.

Oct. 15, 1979.

Alfred Besunder, Mineola, for petitioner.

Robert Abrams, Atty. Gen., New York City, for New York State respondents.

Edward G. McCabe, Mineola, for Nassau County respondents.

VINCENT R. BALLETTA, Jr., Justice.

This is an Article 78 proceeding commenced on behalf of two individuals who are currently in the Nassau County Medical Center. The petitioner alleges that both are being held illegally in violation of the appropriate sections of the Mental Hygiene Law. The petitioner further alleges that these individuals are not suffering from a mental illness, but rather in fact are suffering from mental retardation.

In his petition, the petitioner points out to the Court the appropriate sections of the Mental Hygiene Law which set forth the policy of the State of New York with regard to mental retardation. Mental Hygiene Law Section 13.01. Petitioner further sets forth the mandate of the Mental Hygiene Law in Section 13.07 which states that:

"The office shall have the responsibility for seeing that mentally retarded and developmentally disabled persons specified in the foregoing subdivision are provided with care and treatment, that such care and treatment is of high quality and effectiveness, and that the personal and civil rights of persons receiving care and treatment are adequately protected."

Petitioner alleges that on numerous occasions demands have been made to the various respondents to remove these two individual patients from the Nassau County Medical Center and to an appropriate facility capable of caring for the mentally retarded.

In answering the petition, those respondents represented by the Attorney General of the State of New York deny pertinent portions of the petition. The answer of the respondents represented by the County Attorney of the County of Nassau is similar. More particularly, they deny that the individuals are suffering from mental retardation, they deny that demands have been made upon the respondents to remove the patients, they deny that applications have been made to the Suffolk Developmental Center on behalf of both patients, they deny that any of their actions are arbitrary or capricious and constitute abuses of discretion.

In the nature of affirmative defenses, the New York State respondents allege: (1) petitioner is without authority to make this application; (2) the petition fails to state a cause of action in that no allegation is made that the two patients are in need of care and treatment and neither patient requires such care and treatment in the Developmental Center; (3) respondents are cooperating and will continue to cooperate with the appropriate Nassau County medical personnel to find appropriate community placement for the two individuals involved; and (4) respondents have not been arbitrary, capricious or unreasonable in declining to admit the patients to Suffolk Developmental Center in that the Suffolk Developmental Center is significantly overpopulated.

On the return date of this petition, numerous papers were submitted to the Court in the nature of copies of letters, progress notes, and various reports concerning the subject patients. These papers will be deemed marked as Court Exhibit "A" in connection with this proceeding.

In establishing an affirmative defense, the party raising said defense has the burden of proof. Conner v. Keese, 105 N.Y. 643, 11 N.E. 516 (1887); Vol. 21 New York Jurisprudence, Evidence Section 150. In examining the affirmative defenses raised by the New York State respondents, the Court finds as follows: that with respect to the first affirmative defense, pursuant to Mental Hygiene Law Section 29.09(b)(5), the petitioner Mental Health Information Service is directed to ". . . take any legal action deemed necessary to safeguard the right of any patient to protection from such abuse and mistreatment and may act as the legal representative of any patient who has not obtained other legal representation . . .".

It is apparent that the Legislature intended to provide a service for patients to protect their rights as against other governmental agencies and to insure that they are receiving adequate and proper care under the law. While the main function of the Mental Health Information Service is not the making of applications and the institution of court proceedings to insure that mentally retarded patients are cared for in proper institutions, it undoubtedly falls within the general responsibilities which they have toward those patients, especially if no one else, as is evident in this case, is taking the necessary steps to insure that the mentally ill or the mentally retarded receive the services to which they are entitled. Consequently it is the ruling of this Court that the Mental Health Information Service has the requisite power to bring this proceeding.

The Court cannot help but note that the Mental Health Information Service has not completely grasped the full scope of its authority and responsibilities. While it may be truly said that the agency has evidenced a concern for the patient, they have not developed a system whereby they have followed through on all of the technical steps...