| Matter of Brown v Sawyer |
| 2011 NY Slip Op 04917 [85 AD3d 1614] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Larry Brown et al., Appellants, v Donald Sawyer,Executive Director, Central New York Psychiatric Center, et al.,Respondents. |
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Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (DavidA. Murad, J.), entered May 17, 2010 in a proceeding pursuant to CPLR article 78. The judgmentdenied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioners, who are civilly confined at the Central New York PsychiatricCenter (CNYPC) pursuant to article 10 of the Mental Hygiene Law, commenced this CPLRarticle 78 proceeding seeking to annul the determination that denied their objections to a CNYPCpolicy banning them from receiving all outside food packages. Supreme Court properly deniedthe petition.
We note at the outset that, contrary to petitioners' contention, the doctrine of collateralestoppel does not apply to preclude respondents from defending their policy as a result of thedecision in Hirschfeld v Carpinello(12 Misc 3d 749 [2006]). First, we agree with respondents that there was no identity of issuenecessary for the application of that doctrine because the type of facility at issue inHirschfeld was different from the one in this proceeding (see generally Parker v BlauveltVolunteer Fire Co., 93 NY2d 343, 349 [1999]). Second, the regulation relied upon by thecourt in Hirschfeld has since been repealed. The prior regulation, 14 NYCRR former21.5, prohibited any restriction of incoming packages for patients, except for those patients witha condition that in the opinion of the treatment team warranted "some selectivity." Here,however, the regulation in question permits restrictions where the packages are "reasonablysuspected to contain contraband or . . . otherwise implicate significant security orsafety concerns" (14 NYCRR 527.11 [c] [1]).
We reject petitioners' contentions that the CNYPC policy violates Mental Hygiene Law§ [*2]33.05 and 14 NYCRR 527.11. We further concludethat the determination that denied petitioners' objections to the policy banning their receipt of alloutside food packages is not arbitrary and capricious (see generally Matter of Pell v Board ofEduc. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 230-231 [1974]). "Arbitrary action is without sound basis in reasonand is generally taken without regard to the facts" (id. at 231). Here, the affidavit of thedirector of the sex offender treatment program at CNYPC, which was submitted in opposition topetitioners' CPLR article 78 petition, establishes that the decision to ban all outside foodpackages has a sound basis in reason and is supported by legitimate concerns regarding thesecurity of the institution and the welfare of the residents therein. Contrary to petitioners'contention, we may properly consider that affidavit despite the fact that it was not submittedduring the administrative process "because there was no administrative hearing and the issue hereis not one of substantial evidence but, rather, [the issue is] whether the [agency's] determinationhas a rational basis" (Matter of Kirmayerv New York State Dept. of Civ. Serv., 24 AD3d 850, 852 [2005]; see Matter of Humane Socy. of U.S. vEmpire State Dev. Corp., 53 AD3d 1013, 1018 n 3 [2008], lv denied 12 NY3d701 [2009]; Matter of Poster v Strough, 299 AD2d 127, 142-143 [2002]).Present—Scudder, P.J., Peradotto, Lindley, Green and Gorski, JJ.