Opinion
Argued November 19, 1997
Decided December 22, 1997
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 5, 1996, which modified, and, as modified, affirmed an order and judgment (one paper) of the Supreme Court (Edward J. Greenfield, J.; opn 165 Misc.2d 62), entered in New York County, (1) granting a motion by plaintiffs for summary judgment to the extent of declaring that the regulations codified at 14 NYCRR 527.10 were promulgated by the Commissioner of the Office of Mental Health (OMH) beyond his authority and without the consent of the Commissioner of Health and are, thus, invalid and unenforceable in their entirety and for all purposes, declaring that non-Federally funded human subject research carried out at OMH-operated and licensed facilities and involving more than minimal risk and subjects who are minors or adults lacking the capacity to give informed consent to such research is subject to the provisions of Public Health Law article 24-A and is in violation of those provisions because it has not been consented to by the Commissioner of Health, declaring that Federally funded human subject research carried out at OMH-operated and licensed facilities that is subject to and in compliance with the Federal regulations promulgated by the United States Department of Health and Human Services as 45 CFR part 46 is exempt from the provisions of Public Health Law article 24-A and, therefore, does not require the consent of the Commissioner of Health, and ordering that the Commissioner of Health must advise plaintiffs at least five days prior to the effective date of any promulgated regulations to which consent is to be given by the Commissioner of Health concerning human subject research carried out at OMH-licensed or operated facilities involving more than minimal risk and subjects who are minors or adults lacking the capacity to give informed consent to such research, and (2) denying a cross motion by defendants for summary judgment. The modification consisted of declaring that the following provisions of the regulations promulgated by the Office of Mental Health and codified at 14 NYCRR 527.10 (e) (2) (ii), (iii), (iv), (viii), (ix); (3) (i), (iii), (v) fail to provide for adequate notice and review procedures and, therefore, violate the Due Process Clause of the New York State Constitution (art I, § 6), and the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and violate this State's common law as well as Public Health Law article 24-A and Social Services Law, article 6, title 1.
T.D. v New York State Off. of Mental Health, 228 A.D.2d 95, appeal dismissed.
New York Lawyers for the Public Interest, Inc., New York City ( Ruth Lowenkron and Edward Copeland of counsel), Disability Advocates, Inc., Albany ( Cliff Zucker of counsel), and Mental Hygiene Legal Service, New York City ( Clifford S. Karr and Karen Andreasian of counsel), for appellants.
Dennis C. Vacco, Attorney-General, New York City ( Lucia M. Valente, Arnold D. Fleischer, John McConnell and Barbara Gott Billet of counsel), for respondents. Williams Connolly ( Robin E. Jacobsohn, Lynda Schuler, Jonathan L. Marcus, Stacey M. Bosshardt and Ann H. Rakestraw, of the District of Columbia Bar, admitted pro hac vice, of counsel), Ira Burnim, of the District of Columbia Bar, admitted pro hac vice, and Steven H. Mosenson, New York City, for Bazelon Center for Mental Health Law and others, amici curiae. Pepper, Hamilton Scheetz, L.L.P. ( Nina M. Gussack and Matthew J. Hamilton, of the Pennsylvania Bar, admitted pro hac vice, of counsel), Daniel I. Prywes and H. David Kotz, of the District of Columbia Bar, admitted pro hac vice, for American College of Neuropsychopharmacology and another, amici curiae. Stein Schonfeld, Garden City ( Seth B. Stein of counsel), for American Psychiatric Association and others, amici curiae. Hinman, Straub, Pigors Manning, P.C., Albany ( Bartley J. Costello, III and Deirdre Roney of counsel), for Associated Medical Schools of New York, amicus curiae. Lori R. Levinson, New York City, for Greater New York Hospital Association, amicus curiae.
MEMORANDUM.
The appeal should be dismissed, without costs.
In bringing this action, plaintiffs sought to have declared invalid regulations promulgated by defendant New York State Office of Mental Health (OMH), pertaining to experimental medical research on patients or residents of OMH facilities deemed incapable of giving consent. Plaintiffs have received the complete relief sought in this litigation. A successful party who has obtained the full relief sought is not aggrieved, and therefore has no grounds for appeal (CPLR 5511; Parochial Bus Sys. v Board of Educ., 60 N.Y.2d 539, 544-545; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 N.Y.2d 408, 412-413).
We note moreover that, once the Appellate Division in its decision below had concluded that the challenged regulations were invalid because OMH lacked statutory authority to promulgate them, it was unnecessary under the circumstances here presented to prospectively declare the regulations invalid on additional common-law, statutory, and constitutional grounds. In doing so, the Appellate Division issued an inappropriate advisory opinion ( see, Cuomo v Long Is. Light. Co., 71 N.Y.2d 349; New York Pub. Interest Research Group v Carey, 42 N.Y.2d 527; Matter of State Indus. Commn., 224 N.Y. 13).
Since plaintiffs are not aggrieved, and defendants have not cross-appealed, the appeal must be dismissed.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Appeal dismissed, without costs, in a memorandum.