The following papers numbered 1 to 7 were read on Respondents’ motion for dismissal of the First Amended Complaint: Notice of Motion — Affirmation / Exhibits — Memorandum 1-3 Memorandum in Opposition — Affirmations (2) 4-6 Reply Affirmation 7 DECISION AND ORDER I PROCEDURAL HISTORY 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 then moved for dismissal of the Petition. By prior Decision and Order dated February 23, 2023, the Court held that it had jurisdiction per CPLR §103[c] to convert Petitioner’s special proceeding to an action. However, upon a finding that Petitioner’s claims for declaratory relief had been mooted by his transfer from the Putnam County Jail to the Sunmount Development Center, the Court declined to exercise its authority under CPLR §103(c) with respect to the First, Third, Fourth and Sixth Claims in the Petition, and granted Respondent’s motion for dismissal of those Claims. Finally, the Court held that the Petition failed to state a claim for relief under ADA Title II. The Court therefore dismissed the Petition “without prejudice, and with leave to file…an amended complaint, limited in accordance with this Decision, repleading a claim for monetary damages under Title II of the Americans with Disabilities Act.” II THE FIRST AMENDED COMPLAINT: FACTUAL ALLEGATIONS The Complaint 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). ( 31) He was arrested on April 27, 2022 for burglary and incarcerated at the Putnam County Jail. (
38-42) 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.” (
