Klostermann v. Cuomo

• Decision Date: 02 October 1984
• Citation: 481 N.Y.S.2d 580,126 Misc.2d 247
• Parties: John KLOSTERMANN, et al., Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York, et al., Defendants.
• Court: New York Supreme Court

Page 580

481 N.Y.S.2d 580

126 Misc.2d 247

John KLOSTERMANN, et al., Plaintiffs, v. Mario M. CUOMO, as Governor of the State of New York, et al., Defendants.

Supreme Court, Trial Term New York County, Part 23.

Oct. 2, 1984.

Debevoise & Plimpton, Robert M. Hayes, New York City, for plaintiffs; Roger E. Podesta, Marla Alhadeff, Marc M. Arkin, New York City, of counsel.

Robert Abrams, Atty. Gen., New York City, for defendants; Frederick K. Mehlman, Howard L. Zwickel, Randolph Volkell, Asst. Attys. Gen., New York City, of counsel.

Kelley, Drye & Warren, New York City, for defendant the Society of New York Hospital; Kathleen M. Burke, Patricia C. Tuohy, New York City, of counsel.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for City defendants; George Gutwirth, Joel Grobtuch, New York City, of counsel.

RICHARD W. WALLACH, Justice:

The nine plaintiffs here are among the homeless who live in shelters or on the City streets; an additional common bond between them is that they are all dischargees from state psychiatric care facilities who claim that this status entitles them to a treatment plan which includes residential housing. The defendants are the Governor and the two State Commissioners of the Office of Mental Health and the Department of Social Services from whom this right is claimed. Following a decision on March 27, 1984, by the Court of Appeals that at least certain aspects of the claims advanced by plaintiffs are justiciable and a remand, 91 A.D.2d 593, 458 N.Y.S.2d 190, of the case for determination on the merits (61 N.Y.2d 525, 475 N.Y.S.2d 247, 463 N.E.2d 588), three motions are now presented for disposition:

I. Defendants' motion for joinder of additional parties defendant and a stay:

Motion by defendants for an order directing joinder of additional defendants, namely (i) The Society of the New York Hospital ("Society") and (ii) collectively two New York City Commissioners and two agencies under their direction and control ("City agencies") as necessary parties under CPLR 1001, together with a stay of the action pending such joinder, is denied. Such joinder is opposed by plaintiffs as well as Society and the City agencies, who have convincingly demonstrated that plaintiffs can obtain the full relief to which they may be entitled without such joinder. The Society and the City agencies (who have appeared and been fully heard on this motion) are in a far better position to assess whether they will suffer any prejudice or be inequitably affected by any ultimate judgment in this action than the present defendants, and these proposed additional defendants discern none. To the extent that a judgment adverse to the present defendants may require some cooperative action by the Society or the City agencies, they stand ready to perform their duty without demur. Joinder of these acquiescent and non-adversarial parties would only serve to impede and delay disposition of plaintiffs' claims without any visible benefit. It therefore follows that defendants' motion for a stay is also denied as moot, which clears the way for consideration of defendants' motion to dismiss the complaint under CPLR 3211(a)(2) for lack of subject matter jurisdiction and under CPLR 3211(a)(7) for failure to state a cause of action. This motion is granted in part and denied in part as follows:

II. Defendants' motion to dismiss the complaint:

(1) Plaintiffs purport to state in their complaint eleven separate causes of action set up as "Counts". Preliminarily it is noted that no attack whatever is made upon Count IX based upon violation of the federal Mental Health Systems Act (42 U.S.C. Sec. 9401 et seq.) and the Community Mental Health Centers Extension Act (42 U.S.C. § 2689 et seq.), nor upon Count X based upon violation of the federal Special Health Revenue Sharing Act (42 U.S.C. Sec. 246). It follows that these counts may be realleged in the amended complaint which is directed to be served.

(2) Count I purports to rest upon continued violation of "plaintiffs' rights under the Fifth and Fourteenth Amendments to the United States Constitution to receive treatment ... and to receive such treatment in the least restrictive environment ..." and "... plaintiffs' rights to personal security and freedom from harm protected by the Fifth, Eighth and Fourteenth Amendments." These allegations fail to state a cause of action. Basically, there is no federal constitutional right to treatment at public expense (Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16, esp. fn. 12, 101 S.Ct. 1531, 1539, fn. 12, 67 L.Ed.2d 694; O'Connor v. Donaldson, 422 U.S. 563, 573, 587-9, 95 S.Ct. 2486, 2492, 2499-2500, 45 L.Ed.2d 396; Rone v. Fireman, 473 F.Supp. 92, 119; Ellen S. v. Rhodes, 507 F.Supp. 734, 738; Flakes v. Percy, 511 F.Supp. 1325, 1337; Eckerhart v. Hensley, 475 F.Supp. 908, 914). A different conclusion might follow if the liberty interest of any of plaintiffs were alleged to have been restricted but these plaintiffs are not presently under any restraint or confinement by defendants or any other state instrumentality. It is only confinement of the patient that triggers a federal constitutional obligation upon a state to provide him with treatment in "the least restrictive environment" (Youngberg v. Romeo, 457 U.S. 307, 317, 319, 102 S.Ct. 2452, 2459, 2460, 73 L.Ed.2d 28; see also Pennhurst State School and Hospital v. Halderman, supra, 451 U.S. at p. 29, 101 S.Ct. at p. 1546; Garrity v. Gallen, 522 F.Supp. 171; Patton v. Dumpson, 425 F.Supp. 621, 624). Accordingly this count is dismissed.

(3) In Count III of the complaint, plaintiffs attempt to construct a cause of action to compel the State to provide "adequate care and treatment in the least restrictive environment" bottomed upon the New York Constitution (Art. XVII Secs. 1 and 4) as well as the following provisions of the State Mental Hygiene Law Secs. 7.01, 7.05, 7.07, 33.03, 41.25 and 43.01. Of course there is nothing to prevent a State from providing a program with higher constitutional standards than that which is commanded by federal law. However in this instance, the court finds that the State has not done so. The cited sections of MHL do not, as plaintiffs argue, provide a "comprehensive mandate" to furnish to plaintiffs with any particular level of care and treatment. On the contrary these provisions define the general mission, or goal of the Office of Mental Health, and were not designed by the legislature to vest particular rights in the public at large. Here too, in the correlative state constitutional and statutory setting, the New York courts have firmly linked the "right to adequate treatment" to those whom the state has either confined or assumed custody over (e.g. Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 350 N.Y.S.2d 889, 305 N.E.2d 903; Renelli v. State Commissioner of Mental Hygiene, 73 Misc.2d 261, 340 N.Y.S.2d 498; In re Graham S., 78 Misc.2d 351, 356 N.Y.S.2d 768; In re Leopoldo Z., 78 Misc.2d 866, 358 N.Y.S.2d 811; In re David M., 77 Misc.2d 491, 354 N.Y.S.2d 80). Since plaintiffs are not presently in the care or custody of the State, they have no general claim to a particular type of care and treatment whether "least restrictive" or otherwise. Accordingly Count III of the complaint must likewise be dismissed.

(4) Count II of the complaint, however, which rests upon alleged violation of plaintiffs' rights to equal protection of the law under both federal and state constitutions is not subject to the same infirmity. This count is supported by allegations and proof by way of affidavit showing that defendants do in fact provide appropriate residential placement, care and supervision to some patients who are discharged from state psychiatric facilities, but that plaintiffs, by virtue of the greater severity of their illnesses, are refused such treatment and consigned to life on the New York City streets. Such a paradoxical administration of public charitable resources--that the more severely handicapped are allotted, for that reason, less assistance than to others in the same class--has been held violative to both New York and federal equal protection guarantees (Lee v. Smith, 43 N.Y.2d 453, 402 N.Y.S.2d 351, 373 N.E.2d 247; In re Patricia A., 31 N.Y.2d 83, 335 N.Y.S.2d 33, 286 N.E.2d 432). This cause of action must be sustained together with Count VIII of the complaint which, resting upon similar allegations, relies upon Sec. 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). That statute, sometimes referred to as a Bill of Rights for the mentally and physically handicapped, provides in pertinent part: "No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation ..." (in any federally assisted program), nor may such a person be discriminated against once admitted to the program. Thus plaintiffs have pleaded a statutory as well as constitutional cause of action. Of course defendants are entitled to urge that plaintiffs are not "otherwise qualified" for participation in community based housing facilities, and that th...