For the Involuntary Hospitalization Pursuant to Section 9.43 of the Mental Hygiene Law of C.C. DECISION AND ORDER By Petition filed on October 17, 2023, petitioner seeks a warrant pursuant to Mental Hygiene Law §9.43 directing that the respondent be brought before this Court for a hearing to determine whether the respondent should be removed to a hospital specified in Mental Hygiene Law §9.39(a). The petition alleges, in sum and substance, that the petitioner is the guardian of the property and person of the respondent, that respondent’s apartment is uninhabitable and is being condemned, and that despite the condition of the apartment, the respondent refuses to leave, thus placing herself at risk of harm. Oral argument was heard on October 17, 2023. Petitioner appeared by Marc Mendlowitz, Esq. Mental Hygiene Legal Service, by Katherine B. Davies, Esq., appeared on behalf of the respondent. After argument, this Court ruled that no warrant shall be issued at this time and informed counsel that a written Order would follow. For the reasons set forth herein, the Court declines to issue the requested warrant, and the petition is denied and dismissed. Mental Hygiene Law §9.43(a) provides that a Court shall issue a warrant directing that the subject of the petition be brought before it when the Court is informed by verified statement “that a person is apparently mentally ill and is conducting… herself in a manner… which is likely to result in serious harm to… herself.” A petitioner may make the required showing by demonstrating that the respondent is unable to meet her needs for food, clothing and shelter (see Matter of Boggs v. New York City Health & Hosps. Corp., 132 AD2d 340 [1st Dept 1987]). The Court finds that petitioner in this matter failed to make the required showing, as it is alleged only that the conditions of the respondent’s apartment are substandard. At oral argument, counsel for petitioner conceded that respondent’s apartment has not been condemned at this time. Petitioner further reported that respondent is a participant in an outpatient treatment program, which includes group therapy, and was not able to articulate any basis for the Court to find that respondent is not compliant with her treatment plan. Nor did petitioner articulate any basis for the Court to find that respondent is unable to meet her needs for food, clothing and shelter. The petition appears to convey only that the petitioner would prefer that respondent agree to a different living arrangement, and not that the respondent is unable to meet her needs for food, clothing and shelter, as would be required for issuance of a section 9.43 warrant. Furthermore, the Court is concerned that the instant application runs afoul of the respondent’s rights pursuant to Article 81 of the Mental Hygiene Law, as it is brought by the respondent’s guardian for the apparent purpose of removing the respondent from her residence, at least temporarily, against her will. Pursuant to Mental Hygiene Law §81.36(c), when a guardian seeks to remove the respondent “from her home and community against her wishes, the [respondent] must be provided with a hearing on notice before the article 81 court” (Matter of Drayton v. Jewish Assn. for Servs. for the Aged, 127 AD3d 526, 528 [1st Dept 2015]). The Court is not persuaded by petitioner’s argument that the intervening acts of physicians, in determining whether to retain respondent at a hospital after the issuance of a section 9.43 warrant and subsequent removal order, remove this matter from the purview of the article 81 court. Finally, even if the petition made the showing required by section 9.43(a), it is questionable whether this Court has the authority to issue a warrant, as it has been held that a Court lacks the authority to grant a guardian “the power to cause respondent to be evaluated for admission to a mental hygiene facility” (Matter of Eggleston v. Gloria N., 55 AD3d 309, 309 [1st Dept 2008]). To the extent to which the above cases may be read to conflict with the authority set forth in section 9.43(a), such a perceived conflict need not be resolved on this application, in light of petitioner’s failure to make the required showing pursuant to section 9.43(a) that respondent is unable to meet her needs for food, clothing and shelter. The Court thus declines to issue a warrant. Accordingly, it is hereby ORDERED that the petition is denied and dismissed. The foregoing constitutes the Decision and Order of the Court. Dated: October 18, 2023
