Siveke, Application of

• Decision Date: 24 July 1981
• Citation: 441 N.Y.S.2d 631,110 Misc.2d 4
• Parties: In the Matter of the Application of Grace SIVEKE, Petitioner, for a Writ of Habeas Corpus to bring up the body of John Siveke, an incompetent now in the custody of Janet Keena and Charles Keena, Respondents.
• Court: New York Supreme Court

Page 631

441 N.Y.S.2d 631

110 Misc.2d 4

In the Matter of the Application of Grace SIVEKE, Petitioner,

for a Writ of Habeas Corpus to bring up the body of John

Siveke, an incompetent now in the custody of Janet

Keena and Charles Keena, Respondents.

Supreme Court, Special Term,

Suffolk County, Part V.

July 24, 1981.

John L. Juliano, P. C., East Northport, for petitioner.

Siben & Siben, Bay Shore, for respondents.

BERNARD F. McCAFFREY, Justice.

The petitioner, Grace Siveke, brought this Writ of Habeas Corpus in order to compel the respondents, Janet Keena and Charles Keena, to return to the marital residence her husband, John Siveke, who is also the father of respondent, Janet Keena. The petitioner-wife contends that she, not the stepdaughter, Janet Keena, is the proper and appropriate person to have custody of John Siveke.

The petitioner contends that her research revealed no case precedents or statutory authority to substantiate her contention that she, as the wife of John Siveke, has a paramount right to his care and custody over and above that of the respondent-daughter.

The respondent, Janet Keena, contends that a wife's right to care for her husband is not superior to the right of a daughter to care for her father and that the issue is not which relationship is closer, but whether the petitioner or respondent-daughter is better able to provide for the care of John Siveke. Respondents too acknowledge that their research revealed no case precedents or statutory authority to substantiate their contention.

Therefore, both counsel have stated that this is a matter of first impression.

John Siveke and Grace Siveke were married on June 24, 1971, and up to and including April 1981 have resided together as husband and wife at 3 Circle Dale Road, Holbrook, New York.

On or about July 1978 John Siveke was diagnosed as terminally ill with cancer, and since that time his condition has worsened to a point where he continues to suffer a loss of his faculties and require continuous nursing care. Grace Siveke has, for approximately two years with the aid of private duty nurses, provided her husband with home nursing care, not on a twenty-four hour basis, but rather for fourteen to sixteen hours per day. The nursing care is arranged and provided through the Comprehensive Health Care Nursing Service (hereinafter "Comprehensive"). The cost of said nursing care is financed through a Long Term Disability Insurance Policy issued by Travelers Insurance Company, made available through John Siveke's employment with Pan American Airways.

It is undisputed by all parties that John Siveke is incapable, because of his illness and infirmity, to adequately care for his property and his health.

At the outset, as a threshold issue, the respondents contend that a habeas corpus proceeding is an inappropriate remedy, in that such a proceeding may only be used in the case of detention of infants, or in the detention of persons held by state institutions. Thus, respondents urge that a conservatorship proceeding under Article 77 of the Mental Hygiene Law is the proper remedy for the petitioner. Respondents claim that the detention of John Siveke by them is not illegal, and in the event the court does not dismiss the Writ, it can go no further than determining whether the detention is legal or illegal and, if found to be the latter, require the petitioner to proceed anew under the appropriate provisions of the Mental Hygiene Law.

Habeas corpus is an ancient writ, existing as part of the common law of the state and it is not the creation of any statute, although the granting of the writ is regulated by statutory provisions. (25 N.Y.Jur. Habeas Corpus § 2; see CPLR Article 70).

The Writ of Habeas Corpus is a traditional means of inquiring into the legality of a person's detention, it being a special proceeding used where a person is actually imprisoned or otherwise restrained in his liberty at the time the writ is issued to test the jurisdiction of the person or authority which presumes to restrain him. (People ex rel. Gordon v. Murphy, 55 Misc.2d 275, 285 N.Y.S.2d 198, aff'd 30 A.D.2d 358, 293 N.Y.S.2d 567).

Habeas corpus proceedings are not actions, but are special proceedings to inquire into the cause of a restraint or detention, and to enforce a civil right to be released from unlawful restraint, custody or confinement.

The statutory provisions regarding habeas corpus are found in Article 70 of the CPLR. Section 7001 dealing with the application of Article 70 states in pertinent part as follows: "* * * the provisions of this article are applicable to common law or statutory writs of habeas corpus and common law writs of certiorari to inquire into detention * * *." Section 7002, subd. a, dealing with the petition by whom a writ for habeas corpus may be made states in pertinent part as follows: "A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf * * * may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. A judge authorized to issue writs of habeas corpus having evidence, in a judicial proceeding before him that any person is so detained shall, on his own initiative, issue a writ of habeas corpus for the relief of that person. * * * " (emphasis supplied) It should be noted that the above statutory provisions do not contain any qualifying language that would restrict the application of the article to infants or persons held by state institutions. Had the legislature so intended to restrict the application of Article 70 of the CPLR to such classes of people, it would have done so by use of the appropriate qualifying language. A review of certain case law is further indication that the utilization of the writ is not to be so restrictively construed. For example, the Court of Appeals in Hoff v. State, 279 N.Y. 490, 492, 18 N.E.2d 671, simply said: "The right of persons deprived of liberty to challenge in the courts the legality of their detention is safeguarded by the Constitution of the United States and by the Constitution of the State." Likewise, in the Supreme Court, in People ex rel Ostwald v. Craver, 188 Misc. 5, 7, 65 N.Y.S.2d 748, aff'd 272 App.Div. 181, 70 N.Y.S.2d 513, the court aptly said, with the affirmance of the Appellate Division: "Every person who is unlawfully restrained of his or her liberty has an absolute right to test the legality of unlawful detention by * * * habeas corpus."

As to respondents' contention that a conservatorship proceeding under Article 77 of the Mental Hygiene Law is the proper remedy for the petitioner, the court points out that such a proceeding under said Article 77 may be a proper remedy; but aside from it being preferred over a proceeding brought pursuant to Article 78 of the Mental Hygiene Law (Committee of Incompetent or Patient) there is nothing in the statute that makes Article 77 an exclusive remedy. It should be noted that the availability, to one unlawfully detained, to relief by way of statutory remedy other than habeas corpus does not in and of itself preclude the granting of habeas corpus. (See 25 N.Y.Jur.--Habeas Corpus § 6; Williams v. Director of L. I. Home Ltd., 37 A.D.2d 568, 322 N.Y.S.2d 493; People v. Schildhaus, 8 N.Y.2d 33, 201 N.Y.S.2d 97, 167 N.E.2d 640) Habeas corpus, as an alternative remedy may be refused in the exercise of discretion where full relief may be obtained in other more appropriate proceedings. (People ex rel. Davis v. Arnette, 57 A.D.2d 562, 393 N.Y.S.2d 577, aff'd 44 N.Y.2d 877, 407 N.Y.S.2d 629, 379 N.E.2d 157).

In the case at bar, it would be an abuse of discretion to dismiss the writ before the court and require petitioner to commence a proceeding under another statutory provision. The condition of John Siveke makes time of the essence here, requiring that substance be placed over form to allow the most expeditious handling of the matter.

Notwithstanding that a writ may have limitations, namely, that its "sole purpose * * * is to inquire into the cause of imprisonment or restraint of the person; and the sole inquiry is whether the mandate, by virtue of which a person is detained, is void." (People ex rel. Tatra v. McNeill, 19 A.D.2d 845, 846, 244 N.Y.S.2d 463), the court does not view this as limiting the court to a finding that the writ should be granted...