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INDEX NO. EF20212412
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/02/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF SARATOGA
Mental Hygiene Legal Service, Third Judicial
Department on behalf of
TEGAN BROWN,
ORDER
Petitioner,
Index No, EF2021-2412
RJE No. 45-1-2021-0944
Howard Zucker, Commissioner, Department of Health;
Theodore Kastner, Commissioner, Office for People
With Developmental Disabilities,
Respondent.
By Order to Show Cause of the Supreme Court, Saratoga County (Crowell, J.)
dated August 11, 2021, Petitioner, Mental Hygiene Legal Service, Third Judicial Department
(“MHLS”), on behalf of Tegan Brown, petitioned the Court for an Order annulling a July 23,
2021 determination by the Office for People With Developmental Disabilities (*“OPWDD”)
that Tegan Brown, a person with disabilities and who is presently being maintained in a day
program building operated by Saratoga Bridges, Inc., is not in emergency need of an OPWDD
operated or certified residential bed, NYCEF No. 9;
AND, this matter having come before the undersigned on the 26" day of August
2021, and the Petitioner, MHLS on behalf of Tegan Brown, having appeared by Michael I.
Fiske, Esq. and Sheila E. Shea, Esq. and the Respondents, Howard Zucker, Commissioner of
the New York State Department of Health and Theodore Kastner, Commissioner of OPWDD,
having been represented by Letitia James, Attorney General of the State of New York,
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(FILED: SARATOGA COUNTY CLERK 09/02/2021 02:82 PM INDEX NO. EF20212412
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/02/2021
Adrienne J. Kerwin, Assistant Attorney General;
AND, the Court having considered the following submissions: (1) Order to Show
Cause signed on August 11, 2021, NYCFE No. 9; (2) Petition dated August 10, 2021 with
exhibits, NYCEF Nos. 1-3.; (3) Answer dated August 23, 2021 with exhibits, NYCEF Nos.
12-26; (4) Affirmation of Joan Volpe dated August 23, 2021, NYCEF No. 27; (5)
Respondents’ Memorandum of Law dated August 23, 2021, NYCEF No. 28; (6) Petitioner’s
Reply Memorandum of Law dated August 25, 201, NYCEF No. 30; and (7) Reply
Affirmation of Michael Fiske dated August 25, 2021 with exhibits, NYCEF Nos. 31-33;
AND, after considering all relevant evidence and hearing ora! argument, the Court
finding that the First Cause of Action in the Petition is moot;
AND, after considering all relevant evidence and hearing oral argument, the Court
dismissing the Second and Third Causes of Action for lack of jurisdiction, and declining to
exercise its discretion under CPLR 103(c) to convert the proceeding to a declaratory judgment
plenary action under CPLR 3001;
NOW, based upon the foregoing and due deliberation having been had thereon, it is
hereby
ORDERED AND ADJUDGED:
That the relief sought in the petition, NYCEF No. 1, is denied, and the petition is
dismissed in its entirety with prejudice.
Dated: Ballston Spa, New York
September Q , 2021
ENTER:
RICHARD A. KUPFERMAN, AJS.C.
oh
Entered Saratoga County Clerk
09/02/2021
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INDEX NO. EF20212412 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/02/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF SARATOGA Mental Hygiene Legal Service, Third Judicial Department on behalf of TEGAN BROWN, ORDER Petitioner, Index No, EF2021-2412 RJE No. 45-1-2021-0944 Howard Zucker, Commissioner, Department of Health; Theodore Kastner, Commissioner, Office for People With Developmental Disabilities, Respondent. By Order to Show Cause of the Supreme Court, Saratoga County (Crowell, J.) dated August 11, 2021, Petitioner, Mental Hygiene Legal Service, Third Judicial Department (“MHLS”), on behalf of Tegan Brown, petitioned the Court for an Order annulling a July 23, 2021 determination by the Office for People With Developmental Disabilities (*“OPWDD”) that Tegan Brown, a person with disabilities and who is presently being maintained in a day program building operated by Saratoga Bridges, Inc., is not in emergency need of an OPWDD operated or certified residential bed, NYCEF No. 9; AND, this matter having come before the undersigned on the 26" day of August 2021, and the Petitioner, MHLS on behalf of Tegan Brown, having appeared by Michael I. Fiske, Esq. and Sheila E. Shea, Esq. and the Respondents, Howard Zucker, Commissioner of the New York State Department of Health and Theodore Kastner, Commissioner of OPWDD, having been represented by Letitia James, Attorney General of the State of New York, 1 of 2 (FILED: SARATOGA COUNTY CLERK 09/02/2021 02:82 PM INDEX NO. EF20212412 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 09/02/2021 Adrienne J. Kerwin, Assistant Attorney General; AND, the Court having considered the following submissions: (1) Order to Show Cause signed on August 11, 2021, NYCFE No. 9; (2) Petition dated August 10, 2021 with exhibits, NYCEF Nos. 1-3.; (3) Answer dated August 23, 2021 with exhibits, NYCEF Nos. 12-26; (4) Affirmation of Joan Volpe dated August 23, 2021, NYCEF No. 27; (5) Respondents’ Memorandum of Law dated August 23, 2021, NYCEF No. 28; (6) Petitioner’s Reply Memorandum of Law dated August 25, 201, NYCEF No. 30; and (7) Reply Affirmation of Michael Fiske dated August 25, 2021 with exhibits, NYCEF Nos. 31-33; AND, after considering all relevant evidence and hearing ora! argument, the Court finding that the First Cause of Action in the Petition is moot; AND, after considering all relevant evidence and hearing oral argument, the Court dismissing the Second and Third Causes of Action for lack of jurisdiction, and declining to exercise its discretion under CPLR 103(c) to convert the proceeding to a declaratory judgment plenary action under CPLR 3001; NOW, based upon the foregoing and due deliberation having been had thereon, it is hereby ORDERED AND ADJUDGED: That the relief sought in the petition, NYCEF No. 1, is denied, and the petition is dismissed in its entirety with prejudice. Dated: Ballston Spa, New York September Q , 2021 ENTER: RICHARD A. KUPFERMAN, AJS.C. oh Entered Saratoga County Clerk 09/02/2021 2 of 2