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Matter of Alexis

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 7, 1991
174 A.D.2d 1030 (N.Y. App. Div. 1991)

Opinion

June 7, 1991

Appeal from the Supreme Court, Oneida County, Tenney, J.

Present — Callahan, J.P., Denman, Green, Pine and Lowery, JJ.


Order unanimously reversed on the law without costs and motion granted. Memorandum: The Mental Hygiene Legal Service (MHLS) appeals from an order denying its motion to intervene in an application for court authorization to perform a total hysterectomy upon Alexis H., a 57-year-old mentally retarded patient residing in a family care home. Supreme Court held that MHLS was authorized to provide legal assistance only to patients or residents of a "school" and that the family care home where Alexis H. resided was not such a school as defined in the Mental Hygiene Law.

Although the surgery has been performed, we decline to dismiss this appeal as moot because the issue of statutory interpretation presented is a novel and substantial one, likely to be repeated and typically evading review (see, Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715). Under these circumstances there is a justiciable controversy (see, East Meadow Community Concerts Assn. v Board of Educ., 18 N.Y.2d 129, 134-135).

Supreme Court erred in deciding that a family care home is not a school under the Mental Hygiene Law. MHLS is required to provide legal assistance to patients or residents of schools (Mental Hygiene Law § 47.01 [a]). A school is defined as the in-patient service of a developmental center or other residential facility for the mentally retarded, or a facility for the residential care or treatment of such persons which has been issued an operating certificate (Mental Hygiene Law § 1.03). A family care home, where Alexis H. resides, is such facility (Mental Hygiene Law § 16.03 [a] [1]). Therefore, the MHLS should have been permitted to intervene on her behalf.


Summaries of

Matter of Alexis

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 7, 1991
174 A.D.2d 1030 (N.Y. App. Div. 1991)
Case details for

Matter of Alexis

Case Details

Full title:In the Matter of ALEXIS H

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 7, 1991

Citations

174 A.D.2d 1030 (N.Y. App. Div. 1991)
572 N.Y.S.2d 194

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