Opinion · Appellate Division of the Supreme Court of the State of New York

Fhagen v. Miller

36 A.D.2d 926

Type: Opinion
Court: Appellate Division of the Supreme Court of the State of New York
Jurisdiction: New York
Date: 1971-05-13
Topic: general

*927Concur—Capozzoli, J. P., Nunez, Kupferman, Steuer and Eager, JJ. [65 Misc 2d 163.]

Citator

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Authority status: pending
Cited by: 5 opinions

FHAGEN v. MILLER,36 A.D.2d 926[1st Dept 1971]

MICHAEL FHAGEN et al., Appellants, v. ALAN D. MILLER, Individually and as

Commissioner of Mental Hygiene of the State of New York, et al.,

Respondents.

Appellate Division of the Supreme Court of New York, First Department.

May 13, 1971

Judgment, Supreme Court, New York County, entered January 28, 1971, unanimously modified, on the law, to the extent of striking therefrom that part of the last decretal paragraph which dismisses the complaint, and substituting therefor a provision declaring that the emergency and medical admission sections of the Mental Hygiene Law (§ 78, subd. 1 and § 72, subd. 1)Page 927are constitutional and valid; and, as so modified, affirmed, without costs and without disbursements. Since this was an action for declaratory judgment, it was error, in granting summary judgment to defendants, to direct dismissal of the complaint, and a declaration as to the constitutionality of the sections attacked should have been made. (SeeLanzav.Wagner,11 N.Y.2d 317;New York Sporting Arms Assn.v.City of New York,31 A.D.2d 793, and cases cited therein.

Concur — Capozzoli, J.P., Nunez, Kupferman, Steuer and Eager, JJ. [65 Misc.2d 163.]