Steven Z. Mostofsky, J.

Suanne Linder Chiacchiaro, Esq., For the Petitioner//Hospital

Tesla Carrasquillo, Esq., Mental Hygiene Legal Services, For the Respondent/Patient

Steven Z. Mostofsky, J.

On May 24, 2018, this court conducted a hearing on the hospital's Mental Hygiene Law 9.13 (b) application. to involuntarily admit the respondent to the hospital's psychiatric unit. The Court, by short form order, denied the hospital's application because it failed to comply with the statute. The court now takes this opportunity to explain its determination.

The patient voluntarily admitted herself to the hospital's psychiatric unit. On May 14, 2018, the respondent served a notice (commonly referred to as a "three day letter") requesting her release. Once it receives a three day letter, the hospital has two choices under MHL 9.13 (b). Within 72 hours of receipt of the letter, it must promptly release the patient or file an application to involuntarily retain her. Here, the hospital neither released the patient nor applied to change her status within the 72 hours. But on May 18, 2018 it applied late for involuntary retention.

At oral argument, the hospital's attorney claimed that its failure to file on time was de - minimus. But the statute does not allow for delays.

Counsel also argued, that the respondent had to remain involuntarily hospitalized because she was mentally ill and presented an "imminent danger to herself or others" MHL 9.39 (a)(2) , partly, to shift responsibility for any dire consequences onto the court. But absent a timely filing the court could not entertain that issue.

In Matter of Lopez v. Perez , 194 A.D.2d 467, 599 N.Y.S.2d 31 [1st Dept. 1993] the hospital sought to convert the patient from voluntary to involuntary status under MHL 9.13 (b). The hospital submitted to the court, the physician certifications, with the wrong patient's name. The court held the defect was jurisdictional since the papers were not submitted within 72 hours. Here, no papers were timely submitted and the court was required to release the patient forthwith. (See also, Matter of Sherman , 98 Misc.2d 431, 414 N.Y.S.2d 78 [Sup. Ct. N.Y. Co. 1979] ; In re Gladstone , 143 Misc.2d. 646, 540 N.Y.S.2d 960 [Sup. Co. Bx Co. 1989].

This court's decision is consistent with People ex rel. DeLia v. Munsey , 26 N.Y.3d 124, 20 N.Y.S.3d 304, 41 N.E.3d 1119 [2015].

Prior to Munsey , several court decisions held that habeas corpus petitions brought due to a hospital's failure to timely apply to the court for further periods of involuntary retention of a patient fell under the M.H.L. 33.15, the habeas corpus provision of the Mental Hygiene Law. It was commonly believed that M.H.L. 33.15 superceded the common law right of Habeas Corpus codified in CPLR Article 70.

M.H.L. 33.15 (b) provides that before a patient can be released because of an illegal detention, "the court shall examine the facts concerning the person's alleged mental disability and detention". Courts had consistently applied M.H.L. 33.15 to cases where the patient's legal status as an involuntary patient had expired due to the filing of late paperwork. ( See, People ex rel. Noel B. v. Jones , 230 A.D.2d 809, 646 N.Y.S.2d 820 [2nd Dept. 1996] ; State of NY ex rel. Karur v. Carmichael , 41 A.D.3d 349, 838 N.Y.S.2d 562 [1st Dept. 2007] ; Matter of Guia G. , 173 Misc.2d 111, 660 N.Y.S.2d 614 [Sup.Ct. Kings County 1997].

Munsey over-turned those cases and held that CPLR Article 70 applied because the patient [has] already been deprived of due process by virtue of a violation of the procedural protections of the Mental Hygiene Law (citation omitted) ...Thus, a conclusion that section 33.15, with its required hearing to determine the patient's mental status, is the exclusive habeas corpus avenue available to article 9 patients would permit the flagrant disregard—either deliberately or through laxity—of the due process protections provided throughout the Mental Hygiene Law, and there would be no effective remedy available to a patient for a facility's failure to comply with even the most basic of the statutory procedural requirements. ( 26 N.Y.2d at 133, 309 N.Y.S.2d 145, 257 N.E.2d 610 )

Under CPLR 7010, due process requires that "[i]f [a] person is illegally detained a final judgment shall be directed discharging him forthwith.".

As in Munsey , the patient here, Kreisleidy C was being illegally detained once the hospital's application was not submitted on time. Here too, the court's only recourse was to discharge of the patient, to signal to the hospital that its failure to comply with the procedural safeguards of the Mental Hygiene Law will not be tolerated.

Finally, the hospital is not without recourse if it feels that the patient is at risk. It was

"incumbent upon the facility to commence a new article 9 proceeding in compliance with the strictures of the Mental Hygiene Law". Id.

This is the Court's decision and order.