IN RE: Clare BRADLEY (1999)

This is an application pursuant to Public Health Law § 2120 for an order directing that respondent be committed to Southside Hospital, Bay Shore, New York, and submit to such treatment or isolation, or both, as long as may be necessary to terminate a communicable state of tuberculosis as indicated in § 2123 of the Public Health Law.

The issues pursuant to this application were eventually resolved with an Order consented to and approved by the parties and the respective attorneys, thus obviating the hearing required by § 2120 of the Public Health Law.

Prior to said consent order the issue with respect to the burden of proof was raised, which appears to be a case of first impression with respect to the Public Health Law.

The Court held that a petition requesting involuntary detention must be proved by “clear and convincing evidence”.

 The two most widely recognized burdens of proof are the “fair preponderance of the evidence” standard widely used in civil cases and the “beyond a reasonable doubt” standard which preponderates in criminal cases.   Between these two burdens of proof is an intermediate standard of proof known as “clear and convincing evidence.”  [See, Addington v. Texas, 441 U.S. 418, 423-424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979);  See also, Matter of Rochman, 104 Misc.2d 218, 428 N.Y.S.2d 168 (Sup.Ct., Suffolk Co., 1980)]. The party bearing the burden of establishing a fact by clear and convincing evidence must satisfy the trier of fact that what he claims is actually so [See, Prince, Richardson On Evidence, 11th Ed., Farrell, § 3-205].   The Court of Appeals has recognized the applicability of the standard in civil cases when the “denial of personal or liberty rights” is at issue [See, Matter of Cappoccia, 59 N.Y.2d 549, 553, 466 N.Y.S.2d 268, 453 N.E.2d 497 (1983)] or when “particularly important personal interests are at stake” [Matter of Storar, 52 N.Y.2d 363, 379, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981), cert. den., 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981)].   Richardson On Evidence [§ 3-205, op. cit.] contains an exhaustive list of examples in which a variety of policy imperatives dictate adoption of the higher standard of probability reflected by the term “clear and convincing”.   This situation clearly calls for utilization of this standard in that an individual is sought to be detained against his will.   Although there is no mention of this standard in Public Health Law § 2120 or otherwise in said Public Health Law, this situation is analogous to situations where, because of mental infirmity, a person is sought to be detained in a mental facility against his will pursuant to Mental Hygiene Law [See, Addington v. Texas, supra;  Matter of Rochman, supra].   In such situations, where the petitioner is a governmental agency, it must sustain its petition calling for involuntary detention of a person by clear and convincing evidence.   Accordingly, this standard shall also govern here where detention is sought pursuant to Public Health Law § 2120.

HOWARD BERLER, J.