IN RE: the Retention of S.R. (2026)

Papers used: NYSCEF Doc Nos. 1-6.

This decision memorializes and supplements the oral decision dictated on the record on August 28, 2026, in the above-captioned special proceeding commenced by Brookdale Hospital Medical Center (“Brookdale Hospital”) pursuant to Mental Hygiene Law § 9.33, which provides for a hearing on the continued retention of a person involuntarily committed for treatment of a mental illness. The Court granted the patient's oral motion to dismiss the proceeding under CPLR 3211 (a) (3) for lack of standing and ordered her immediate release. The patient is a 25-year-old female admitted on June 21, 2026 pursuant to Mental Hygiene Law § 9.27.

Mental Hygiene Law § 9.33 (a) provides, in relevant part: “If the director shall determine that a patient admitted upon an application supported by medical certification, for whom there is no court order authorizing retention for a specified period, is in need of retention and if such patient does not agree to remain in such hospital as a voluntary patient, the director shall apply to the supreme court or the county court in the county where the hospital is located for an order authorizing continued retention” (emphasis added).

Additionally, subsection (d) of the same statute provides, in pertinent part: “If the director of a hospital, in which a patient is retained pursuant to the foregoing subdivisions of this section, shall determine that the condition of such patient requires his further retention in a hospital, he shall, if such patient does not agree to remain in such hospital as a voluntary patient, apply during the period of retention authorized by the last order of the court to the supreme court or the county court in the county where the hospital is located for an order authorizing further continued retention of such patient” (emphasis added).

Brookdale Hospital submitted an application under § 9.33 to retain the patient who was the subject of the within special proceeding for a period not to exceed six months, alleging that the she “has a mental illness for which care and treatment ․ is essential to such person's welfare and whose judgment is so impaired that ․ she is unable to understand the need for such care and treatment” and she “poses a substantial threat of harm to self or others” (NYSCEF Doc No. 1 at PDF 1).

The application and the certification of service of notice  ¹ were signed by Dr. Sanila Rehmatullah, who it turned out was the program director of residency for adult and child psychiatry at Brookdale Hospital. However, she declared in the forms that she was the “Director of The Brookdale Hospital Medical Center” (id. at PDF 1, 3). This issue was raised by Mental Hygiene Legal Service counsel on behalf of the patient, asserting that Dr. Rehmatullah lacked standing to execute the necessary application to the Court for involuntary retention of the patient because she was not a “director” as per Mental Hygiene Law § 9.33. She certainly was not the director of the hospital. Dismissal on the ground of lack of standing was sought by counsel.

The Court heard testimony from Dr. Vivian Mihailescu, who appeared as a witness for Brookdale Hospital. Dr. Mihailescu stated that at the time of the application, Dr. Jason Hershberger, chair of the Department of Psychiatry at Brookdale Hospital, was on leave and left Dr. Rehmatullah to cover his responsibilities while he was gone.

The Court then heard testimony from Dr. Hershberger confirming the same. He represented that it was a regular practice of his while taking leave for vacation or otherwise to appoint a representative to manage the regular responsibilities of his position in his absence. Dr. Hershberger averred that he found Dr. Rehmatullah capable of handling such tasks on his behalf, although he did not communicate his appointment of a representative to Mental Hygiene Legal Service, and nothing was formalized in writing. It was Dr. Hershberger who identified Dr. Rehmatullah's position at the hospital as program director of residency for adult and child psychiatry.

New York Code of Rules and Regulations (NYCRR) title 14, section 18.2 (b), defines “director” when the term is used in connection with a hospital, to mean the “person in charge of the facility, whether known or referred to as director, superintendent or otherwise.” However, this definition is not strictly adhered to. Indeed, although Dr. Hershberger is technically not the director of the entire Brookdale Hospital, the patient's counsel from Mental Hygiene Legal Service conceded that he would be accepted as a “director” or “director of the hospital” within the meaning of Mental Health Law § 9.33 for the purpose of executing an application for retention. Rather, counsel took issue with Dr. Rehmatullah being the one to sign the application.

Case law involving applications under Mental Hygiene Law § 9.33 are often brought on by applicants other than directors of hospitals (see e.g. Matter of Raymond E. [South Beach Psychiatric Ctr.], 242 AD3d 68, 69 [2d Dept 2025] [application made through clinical director]); Williams v New York State Off. of Mental Health, 2018 US Dist LEXIS 211279, at *5 [EDNY Dec. 14, 2018, No. 10-CV-1022 (WFK) (JO)] [Dr. Andrea Norton, Kingsboro Psychiatric Center Director of Psychiatry, filed an application to retain patient under MHL § 9.33]; Matter of Rueda v Charmaine, D., 76 AD3d 443, 448 [1st Dept 2010, Abdus-Salaam, J. dissenting] [Dr. Carlos Rueda, director of the psychiatric department at Montefiore Hospital, made the application]). Moreover, applications may be brought by an acting clinical director of a psychiatric center (see e.g. Matter of Thomas S., 58 AD3d 1063, 1064 [3d Dept 2009]).

K.C. v Wright (88 Misc 3d 708 [Sup Ct, NY County 2025]) further supports the conclusion that the statutory authority to execute an application for court authorization to involuntarily retain a psychiatric patient, thus initiating a Mental Hygiene Law § 9.33 special proceeding, must be exercised by an individual who falls within the meaning of “director” under the applicable provision. In K.C., the court declined to treat the superintendent of a correctional facility as a proper statutory applicant where he did not fall within the category of directors authorized by Mental Hygiene Law § 9.60 (e) (1) (iv). In reaching that conclusion, the court emphasized that the statute must be read as a whole and that the authority to initiate the proceeding was limited to individuals falling within the identified categories.

Here, unlike in K.C., there is no dispute that Dr. Hershberger, chair of the Department of Psychiatry at Brookdale Hospital, could properly execute the application under § 9.33. The issue is that he did not do so. Although Dr. Hershberger testified that he asked Dr. Rehmatullah to cover his responsibilities while he was on leave, Dr. Rehmatullah was not herself the director, and the application did not identify her as the acting director in Dr. Hershberger's absence.

It is true that the State has an “interest in providing care to the mentally ill and in preventing violence to the mentally ill and others” (Matter of Rebecca Y. [Brunswick Hall Psychiatric Ctr.], 76 AD3d 1028, 1029 [2d Dept 2010] [internal quotation marks omitted]), but attestations by a hospital employee who lacks statutory authorization may not form the predicate for pursuing involuntary retention of a patient. The defects at issue herein are not trivial or minor; they go toward whether a responsible and sufficiently competent hospital official is of the opinion that retention is necessary (cf. id.). There must be compliance with mandatory provisions designed to insure that hospitals’ determinations governing involuntary psychiatric commitment are consistent with due process (see People ex rel. DeLia v Munsey, 26 NY3d 124 [2015]).²

In reading the statute as a whole and the subsequent case law, it is clear that Mental Hygiene Law § 9.33 need not be construed as requiring an application to be executed by the director of the entire hospital, but on the other hand it may not be construed as permitting the application to be signed by a program director of residency for adult and child psychiatry without having clear-cut formal authority as the acting director of the hospital's psychiatric department. At a minimum if neither the hospital director nor the psychiatric director is available to execute the application, either of them should designate in writing a supervisory doctor who is capable of performing the respective responsibilities to act formally as acting director in order to provide statutory authority for commencing § 9.33 proceedings. Certainly, this matter calls for the attention of the legislature so it may clarify in the statute exactly who is empowered to execute the application for retention of an involuntarily committed psychiatric patient in the absence of the “director.”³

In considering the within situation, the Court feels prompted to chastise Brookdale Hospital for the lack of attention to detail exhibited in this case. Not only did Dr. Rehmatullah sign legal forms attesting that she was the director of the hospital, but the hospital also submitted as part of the papers commencing this proceeding a “Notice of Application for Court Authorization to Retain a Patient,” which was obsolete because it contains text referring to the Mental Health Information Service. The latter was created by the legislature in 1964 “to act as the guardian of due process rights for the institutionalized mentally disabled[;] the agency functioned primarily in an informational and ombudsman capacity” (Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Mental Hygiene Legal Service, available at https://www.nycourts.gov/courts/ad2/mhls_mainpage.shtml [last accessed Sept. 4, 2026]). “In 1986, the agency became the Mental Hygiene Legal Service and over the years has evolved into a dedicated legal advocacy program providing a broad range of protective legal services and assistance to mentally disabled persons under the care or jurisdiction of State-operated or licensed facilities” (id.).⁴ Reference to an agency name providing services to hospitalized mentally ill people which was statutorily changed is outdated and evidences an indifferent attitude.⁵

The observations of the Appellate Division, Third Department, in Matter of Thomas S. (58 AD3d 1063, 1065), likewise apply in the present special proceeding: “The director of a facility seeking to retain a patient must submit ample documentation supporting such retention (see Mental Hygiene Law § 9.33 [a]; Matter of Patricia M., 150 Misc 2d 828, 829 [1990])․ Petitioner's initial paperwork on the retention application was poorly prepared” (emphasis added). Hopefully, Brookdale Hospital's lax attitude toward the papers submitted in this Mental Hygiene Law § 9.33 special proceeding will be remedied and future submissions will properly conform to statute.

Considering that Dr. Rehmatullah was not a director, either permanent or acting, of Brookdale Hospital's psychiatric department — and certainly was not the director of the hospital, as she attested — the Court granted the patient's motion made by her attorney from Mental Hygiene Legal Service to dismiss the proceeding on the ground of lack of standing.

FOOTNOTES

FOOTNOTE.  

1.   The forms were formally entitled “Application for Court Authorization to Retain a Patient” and “Certification of Service of Notice [Mental Illness].”

2.   . The Court of Appeals’ discussion of adherence to procedural requirements included the following:It is beyond dispute that “[t]he state ‘has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill,’ ” and that it “may rely on its parens patriae power to provide care to its citizens who are unable to care for themselves because of mental illness” (Matter of K.L., 1 NY3d 362, 370 [2004], quoting Addington v Texas, 441 US 418, 426 [1979]). Nevertheless, it has long been recognized that involuntary civil commitment involves a “ ‘massive curtailment of liberty’ ” (Vitek v Jones, 445 US 480, 491 [1980], quoting Humphrey v Cady, 405 US 504, 509 [1972]) and, “therefore[,] [it] cannot permissibly be accomplished without due process of law” (Rodriguez v City of New York, 72 F3d 1051, 1061 [2d Cir 1995]; see Savastano v Nurnberg, 77 NY2d 300, 307 [1990]). Thus, contrary to the Hospital's contention, a patient may be involuntarily committed only where the standards for commitment and the procedures set forth in the Mental Hygiene Law—which satisfy the demands of due process—are met (see Matter of K.L., 1 NY3d at 371; Project Release v Prevost, 722 F2d 960, 971 [2d Cir 1983]; see generally Savastano, 77 NY2d at 305-309 [recognizing that the Mental Hygiene Law procedures and regulations provide a “network of procedural safeguards” for “the due process rights of those involuntary patients”]). (People ex rel. DeLia v Munsey, 26 NY3d at 132-133 [emphasis in original]; see also People ex rel. Neville v Linder, 81 Misc 3d 802 [Sup Ct, Queens County 2023] [continued confinement after failing to serve form with second psychiatrist's confirming diagnosis was due process violation]; Matter of Krisleidy C., 60 Misc 3d 850 [Sup Ct, Kings County 2018] [noncompliance with deadline to apply for involuntary retention]).

3.   . In a review of Mental Hygiene Law article 9's provisions, the Court of Appeals stated: “When a patient is involuntarily admitted, the facility may hold that person for a limited period of time; if further retention is necessary, the director of the facility must apply to the court for an order authorizing continued retention within 60 days of the admission (see id. § 9.33[a])” (People ex rel. DeLia v Munsey, 26 NY3d 124, 127 [2015] [emphasis added]). Who exactly can sign the application in the absence of the director of the facility, however, was not at issue in that case before the Court of Appeals.

4.   . In “History of the Mental Hygiene Legal Service,” a report available on the same website, the agency states, “Originally named the Mental Health Information Service (‘MHIS’), the agency's name was changed to the Mental Hygiene Legal Service (‘MHLS’) in 1986 to more accurately reflect its duties and functions.”

5.   . Indeed, the form provided by the hospital to the patient appears to contain a limited description of the services available to the latter because it summarized functions of the Mental Health Information Service, which were basically informational in nature, as opposed to legal services, which are now provided by the Mental Hygiene Legal Service; also, the patient is told they can contact the Mental Health Information Service, which no longer exists as such. Patients should not be provided with incorrect or misleading information.

Aaron D. Maslow, J.* FN* This Court acknowledges the assistance of Maxine Como, judicial intern and second year student at Cardozo School of Law, in the preparation of this decision.