Siveke, Application of

CourtUnited States State Supreme Court (New York)
Writing for the CourtBERNARD F. McCAFFREY
Citation441 N.Y.S.2d 631,110 Misc.2d 4
Decision Date24 July 1981
PartiesIn 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.

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.

Page 632

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.

Page 633

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...

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9 practice notes
  • Article 70 of the CPLR for A Writ of Habeas Corpus, the Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 152736/15
    • United States
    • United States State Supreme Court (New York)
    • 29 Julio 2015
    ...from her friends and family, even if proceeding pursuant to article 81 of the Mental Hygiene Law appropriate]; Siveke v. Keena, 110 Misc.2d 4, 7–8, 441 N.Y.S.2d 631 [Sup.Ct., Suffolk County 1981] [habeas proceeding appropriate remedy for wife to compel respondent-stepdaughter to return to h......
  • ex rel. Leo v. Stanley
    • United States
    • United States State Supreme Court (New York)
    • 29 Julio 2015
    ...from her friends and family, even if proceeding pursuant to article 81 of the Mental Hygiene Law appropriate]; Siveke v. Keena, 110 Misc.2d 4, 7–8, 441 N.Y.S.2d 631 [Sup.Ct., Suffolk County 1981] [habeas proceeding appropriate remedy for wife to compel respondent-stepdaughter to return to h......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • 18 Noviembre 1994
    ...to be released from such confinement (People ex rel. H v. P, 90 A.D.2d 434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99; CPLR 7001). As such, the procedures in Article 4 o......
  • Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 25 Noviembre 1996
    ...of a nursing home was sufficient); United Citizens of Mount Vernon v. Zoning Bd. of Appeals, supra, 109 Misc.2d at 1086-87, 441 N.Y.S.2d at 631 (notice of an application to construct Page 239 elderly housing of thirty units was sufficient even though the type of zoning action was not mentio......
  • Request a trial to view additional results
9 cases
  • Article 70 of the CPLR for A Writ of Habeas Corpus, the Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 152736/15
    • United States
    • United States State Supreme Court (New York)
    • 29 Julio 2015
    ...from her friends and family, even if proceeding pursuant to article 81 of the Mental Hygiene Law appropriate]; Siveke v. Keena, 110 Misc.2d 4, 7–8, 441 N.Y.S.2d 631 [Sup.Ct., Suffolk County 1981] [habeas proceeding appropriate remedy for wife to compel respondent-stepdaughter to return to h......
  • ex rel. Leo v. Stanley
    • United States
    • United States State Supreme Court (New York)
    • 29 Julio 2015
    ...from her friends and family, even if proceeding pursuant to article 81 of the Mental Hygiene Law appropriate]; Siveke v. Keena, 110 Misc.2d 4, 7–8, 441 N.Y.S.2d 631 [Sup.Ct., Suffolk County 1981] [habeas proceeding appropriate remedy for wife to compel respondent-stepdaughter to return to h......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • 18 Noviembre 1994
    ...to be released from such confinement (People ex rel. H v. P, 90 A.D.2d 434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99; CPLR 7001). As such, the procedures in Article 4 o......
  • Perlmart of Lacey, Inc. v. Lacey Tp. Planning Bd.
    • United States
    • New Jersey Superior Court – Appellate Division
    • 25 Noviembre 1996
    ...of a nursing home was sufficient); United Citizens of Mount Vernon v. Zoning Bd. of Appeals, supra, 109 Misc.2d at 1086-87, 441 N.Y.S.2d at 631 (notice of an application to construct Page 239 elderly housing of thirty units was sufficient even though the type of zoning action was not mentio......
  • Request a trial to view additional results

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