The following papers numbered 1 to 7 were read on Respondent’s motion for dismissal: Notice of Motion — Affirmation / Exhibits — Memorandum 1-3 Memorandum in Opposition 4 Reply Memorandum 5 Supplemental Memoranda (2) 6-7 For a Judgment Pursuant to Articles 70, 78 and 3001 of the Civil Practice Law and Rules, DECISION AND ORDER Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows: Petitioner Matthew Pecchia, a 26-year old man with severe autism, was arrested on April 27, 2022 for burglary and incarcerated at the Putnam County Correctional Facility. After a competency hearing in the Justice Court of the Town of Patterson, Judge Michael V. Caruso on July 27, 2022 issued a written order pursuant to CPL §730.60 that Matthew be “committed to the custody of Commissioner of the Office for People with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order.” On the following day, Petitioner’s attorney forwarded a copy of Judge Caruso’s order to counsel for the Office for People with Developmental Disabilities (hereinafter “OPWDD”) and asked when Matthew would be transferred from jail to an OPWDD facility. On August 4, 2022 OPWDD replied: The plan for admitting Mr. Pecchia — and others whose admissions are also paused — is to first take into account our ability to align our census with our staffing resources and — when admissions are possible — to then admit individuals based on key criteria including the existence of Court orders, the length of time they have been waiting, and the acuity of their respective clinical needs. On August 11, 2022, in response to a request for an updated status, OPWDD stated: [W]hile we haven’t been able to alleviate the staffing shortage in the past week, we are monitoring Matthew’s status and are in contact with Putnam Mental Health, the Jail and County DSS, and returned calls to the Court and defense counsel. As of our last contact, we understood that he was doing better. We are limited by circumstances largely outside our control in regard to our ability to admit additional individuals, but share the concern for his welfare and will continue to undertake best efforts to facilitate his admission to our facility. On August 23, 2022, a Verified Petition containing six claims for relief was filed on Matthew’s behalf. Petitioner asserted that (1) Matthew’s continued incarceration violated his substantive due process rights under the Constitutions of the United States and State of New York; (2) he was entitled to habeas corpus relief; (3) his incarceration violated the Mental Hygiene Law; (4) his incarceration violated Judge Caruso’s order; (5) OPWDD’s failure to remove him from jail constituted discrimination in violation of Title II of the Americans with Disabilities Act (ADA); and (6) the failure to remove him from jail violated Section 504 of the Rehabilitation Act. Petitioner sought injunctive relief on all claims, monetary damages on his ADA claim, and declaratory relief on all other claims. By Order to Show Cause dated August 24, 2022, this Court directed service of process to be made upon the Respondent, OPWDD Commissioner Neifeld, via email to her General Counsel and Deputy Commissioner, and ordered a hearing on August 26, 2022. The Court thereupon granted Petitioner’s request for injunctive relief and ordered Respondent Neifeld to remove Matthew from jail and provide him with care and services in an appropriate facility no later than 5:00 p.m. on August 29, 2022. Pursuant to the Court’s order, Matthew was transferred on August 29th from the Putnam County Jail to the Sunmount Developmental Center. Respondent now moves for dismissal of the Petition. The issues, as crystallized by the parties’ motion papers, are essentially threefold. Respondent contends: The Court lacks subject matter jurisdiction over Petitioner’s claims for monetary damages and declaratory relief because no “action” was properly commenced. Petitioner’s request for declaratory relief is moot. The Petition fails to state a cause of action under the ADA. I THE COURT HAS JURISDICTION PER CPLR §103(c) TO CONVERT PETITIONER’S SPECIAL PROCEEDING TO AN ACTION Respondent contends that the Court lacks subject matter jurisdiction over the “action” portion of this hybrid proceeding — Petitioner’s claims for monetary damages and declaratory relief — because the Petitioner filed only an order to show cause and petition, not a summons and complaint. Not so. CPLR §103(c) provides in pertinent part: If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution… Thus, “courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal” (Matter of First Natl. City Bank v. City of N.Y. Fin. Admin., 36 NY2d 87, 94 [1975]), provided, as CPLR §103(c) explicitly states, that the court “has obtained jurisdiction over the parties.” See, Phalen v. Theatrical Protective Union No. 1, 22 NY2d 34, 41 (1968); Griffin v. Panzarin, 305 AD2d 601, 603 (2d Dept. 2003). Supreme Court has ample authority in those circumstances to convert a special proceeding into an action, and to deem the pleadings filed — the order to show / notice of petition and petition — to be those required by CPLR §304, i.e, the summons and complaint, respectively. See, Matter of Dao Yin v. Cuomo, 183 AD3d 926, 927 (2d Dept. 2020); Matter of Williams v. Town of Carmel, 175 AD3d 550, 551 (2d Dept. 2019); Matter of Houston v. Board of Managers, 162 AD3d 1026 (2d Dept. 2018); Matter of State of New York (Essex Prop. Mgt., LLC), 152 AD3d 1169, 1171 (4th Dept. 2017); Matter of Greenberg v. Assessor of Town of Scarsdale, 121 AD3d 986, 990 (2d Dept. 2014); Matter of Baba Makhan Shah Lobana Sikh Ctr., Inc., 115 AD3d 948, 950 (2d Dept. 2014); Hodges v. Beattie, 68 AD3d 1597, 1598 (3d Dept. 2009). Here, the Court obtained jurisdiction over Respondent Neifeld via service of the Order to Show Cause in accordance with the Court’s directives (see, NYSCEF Docket Nos. 9, 10).1 Cf., Griffin v. Panzarin, supra, 305 AD2d at 603 (“since the order to show cause was never signed, there was no service of the petition on the respondents and jurisdiction was not obtained over them”). Consequently, it has discretion to grant relief pursuant to CPLR §103(c). Petitioner’s claim for monetary damages under the ADA must be pursued in an action at law, not a special proceeding. The claim remains outstanding. Were it dismissed it could be recommenced as the statute of limitations has not run. Insofar as pertains to the Petitioner’s ADA claim, then, the Court hereby converts the special proceeding to an action and denies Respondent’s motion to dismiss that claim on the purported ground of a lack of subject matter jurisdiction. Petitioner’s claims for declaratory relief must likewise be pursued in an action for declaratory judgment, not in a special proceeding. In Prisoners’ Legal Services of New York v. NYS Department of Corrections and Community Supervision, 209 AD3d 1208 (3d Dept. 2022), the Court wrote: [W]e discern no abuse of discretion in Supreme Court’s dismissal of petitioner’s claims for a declaratory judgment in light of its failure to file a summons and combined Petition / complaint, nor did the court err in failing to convert the proceeding into a hybrid proceeding/action, particularly where, as here, several of the requested declarations were mooted by respondent’s disclosure of the corresponding requested materials (see Matter of New York Times Co. v. City of N.Y. Police Dept., 103 AD3d 405, 407…[1st Dept. 2013], lv dismissed 21 NY3d 930…, lv denied 22 NY3d 854…[2013]; see also Premier Restorations of N.Y. Corp. v. New York State Dept. of Motor Vehs., 127 AD3d 1049…[2d Dept. 2015]). Prisoners’ Legal Services of New York, supra, 209 AD3d at 1211 n. 1. Here, similarly, Petitioner’s claims for declaratory relief have been mooted by his transfer from the Putnam County Jail to the Sunmount Development Center. (See, Point II, below) Therefore, the Court declines to exercise its authority under CPLR §103(c) with respect to the First, Third, Fourth and Sixth Claims in the Petition, and grants Respondent’s motion for dismissal thereof. II PETITIONER’S REQUEST FOR DECLARATORY RELIEF IS MOOT Petitioner has been granted complete injunctive relief by virtue of Matthew’s transfer from the Putnam County Jail to the Sunmount Developmental Center pursuant to this Court’s August 26, 2022 Order. His only claim for monetary damages arises under Title II of the ADA. Under the circumstances, his request for a declaratory judgment that Respondent violated (1) his due process rights under the constitutions of the United States and State of New York, (2) the Mental Hygiene Law, (3) the Justice Court order issued by Judge Michael Caruso, and (4) the Rehabilitation Act is moot. “An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001; Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 AD3d 253 [2006]; Tri-State Sol-Aire Corp. v. County of Nassau, 156 AD2d 555 [1989]). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent or remote prejudice to the plaintiff (see Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 [2010]; Waterways Dev. Corp. v. Lavalle, 28 AD3d 539, 540 [2006]).” Premier Restorations of New York Corp. v. NYS Dept. of Motor Vehicles, 127 AD3d 1049 (2d Dept. 2015). See also, Matter of JMD Holdings, LLC v. Village of Warwick, 200 AD3d 880, 883 (2d Dept. 2021). Although Petitioner acknowledges that he has obtained complete injunctive relief, he nevertheless contends that his request for a declaratory judgment is not moot because, on account of his permanent disability, it is “entirely possible that Petitioner will finds himself in this same circumstance in future.” (Mem., p. 12) However, as the Second Department observed in Premier Restorations, supra, “a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future” does not give rise to a “justiciable controversy.” See, id., 127 AD3d at 1049. Moreover, Petitioner has utterly failed to rebut Respondent’s demonstration of the inapplicability here of the exception to the mootness doctrine permitting consideration of “substantial and novel issues that are likely to be repeated and will typically evade review.” See, Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715 (1980). See also, Prisoners’ Legal Services of New York v. NYS Department of Corrections and Community Supervision, supra, 209 AD3d at 1211. Complete injunctive relief having been granted, and Petitioner’s injury (except for that underlying his claim for monetary damages under the ADA) having been obviated, he now seeks only an impermissible advisory opinion declaring that Respondent violated his rights as alleged in the First, Third, Fourth and Sixth claims in the Petition. Consequently, Respondent’s motion for dismissal of those claims is granted. III THE LEGAL SUFFICIENCY OF PETITIONER’S ADA CLAIM A. The Basic Factual Allegations of the Petition The Petition alleges that Matthew is a disabled individual, having been diagnosed with autism spectrum disorder, Lyme’s disease and Pediatric Acute-Onset Neuro-psychiatric Syndrome (PANS). ( 36) He was arrested on April 27, 2022 for burglary and incarcerated at the Putnam County Correctional Facility. ( 39) Upon a finding of Matthew’s incompetency to stand trial, the Justice Court on July 27, 2022 issued an order directing that he be “committed to the custody of Commissioner of the [OPWDD] for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order.” (
56-57) OPWDD pursuant to CPL §730.60 has a duty to provide care and treatment to individuals with developmental disabilities who are placed in its custody and, with a 2022 budget of $4.9 billion, operates numerous facilities for this purpose. (
