MATTER OF LEVY v. Davis
| Decision Date | 25 February 2003 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of RITA LEVY, Petitioner,<BR>v.<BR>WILLIAM J. DAVIS, Respondent. |
Petitioner Rita Levy, a person adjudicated to be incapacitated, who suffers from diabetes and dementia, was admitted to St. Luke's-Roosevelt Hospital on September 5, 2002, because, according to her court-appointed guardian, she had refused insulin treatments at home. Memos by hospital medical personnel describe the dangers attendant to petitioner's failure to control her diabetes at home and urge that placement in a nursing home, where her diabetes could be effectively monitored and controlled, is the only "safe, appropriate discharge plan."
Given this state of affairs, on November 12, 2002, petitioner's guardian commenced a proceeding pursuant to Mental Hygiene Law § 81.36, for modification of the guardianship order to permit permanent placement of petitioner in a nursing home. However, petitioner's court-appointed attorney informed the court that Ms. Levy had refused voluntary placement in a nursing home and wanted to return to her Manhattan apartment. Mental Hygiene Law § 81.36 (c) requires that a hearing be held on any application for modification of guardianship powers, and petitioner's attorney requested that the section 81.36 hearing be held at petitioner's hospital bedside because petitioner could not be safely transported to court.
Instead of holding a hearing, respondent issued an order, dated December 5, 2002, referring the question of whether petitioner should be involuntarily placed in a nursing home to a special referee "to hear and report." The order further provided that, "[p]ending receipt of the report and a CPLR 4403 motion, final determination of this motion is held in abeyance." The special referee assignment calendar scheduled the matter for February 27, 2003, more than three months after the Mental Hygiene Law § 81.36 modification application was filed. Petitioner's counsel has been informed that she may present her request for a bedside hearing at the time, with the result that a date for a hearing on the substantive question of petitioner's placement has not yet been scheduled. In the meantime, petitioner remains hospitalized and continues to incur mounting hospital charges, since she may not be discharged until the issue of whether she should be placed in a nursing home is resolved. According to the petition, as of January 28, 2003—when the instant article 78 petition was filed— petitioner's hospital bills had already exceeded the six-figure level.
Petitioner seeks a writ of mandamus vacating respondent's December 5, 2002, order and compelling respondent to hold a hearing under Mental Hygiene Law § 81.36 on whether petitioner should be involuntarily placed in a nursing home. Petitioner argues that respondent failed to comply with the time limits established for article 81 proceedings and exceeded his authority by referring the matter of her placement to a special referee. We agree.
Mental Hygiene Law § 81.13 requires that, except "for good cause shown," proceedings brought "under this article" are to be afforded "preference over all other causes in the court"; that requisite article 81 hearings or trials "shall be conducted within the time set forth in subdivision (a) of section 81.07" (no more than 28 days from the date the petition is filed); and that a decision "shall be rendered within forty-five days of the date of the signing of the order to show cause * * *."
Contrary to respondent's contention, there is nothing in article 81 that suggests that the time limitations established by Mental Hygiene Law § 81.13 are applicable only to guardianship appointment proceedings and not to proceedings brought pursuant to section 81.36 to modify guardianship powers. As noted, section 81.13, by its terms, encompasses proceedings "under this article" (emphasis added). Moreover, there is no principled reason why the time limits mandated by section 81.13 should apply to appointment but not modification proceedings. Both proceedings pertain to an individual's competency and capacity to live as he or she wishes and conduct his or her own affairs. Both proceedings may result in interference with such an individual's independence and ability to live according to his or her own desires. The issue presented by the guardian in this case—whether petitioner should be involuntarily placed in a nursing home—no doubt presents the possibility of an even greater incursion into petitioner's personal liberty than the initial appointment of a guardian did (see e.g. Matter of Grinker [Rose], 77 NY2d 703, 710). There is no reason to conclude that section 81.36 modification proceedings should not require similar due process protections and be subject to the same procedural requirements as attendant to appointment...
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