The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Beginning as early as 1996, defendants, certain nursing homes in New York State, began accepting as residents patients discharged from facilities licensed by the Office of Mental Health (OMH). The patients were primarily from New York State psychiatric hospitals with diagnoses of mental illness. All but one of defendant nursing homes placed the patients in discrete units of the residence, referred to as "neurobiological units" (NBUs), where the residents received psychiatric and psychosocial rehabilitative services. Defendant nursing homes operate under licensing by the Department of Health but have never sought, nor obtained, licenses from OMH.
In October 2002, a series of related articles began appearing in the New York Times focusing on the NBUs and claiming that NBU residents were being deprived of legal protections afforded to patients committed to psychiatric wards, including the right to a lawyer. Upon learning of the articles, Mental Hygiene Legal Services (MHLS) conducted an investigation and thereafter sought access to NBU residents and their records in order to provide advocacy and legal representation to those who might be in need of such services. Defendant nursing homes denied MHLS such access.
Thereafter, in June 2003, plaintiff Sidney Hirschfeld, Director of MHLS (hereinafter MHLS), commenced this action against defendant nursing homes alleging that because the nursing homes are providing services for mentally disabled residents, MHLS has a right of access to such residents. MHLS sought judgment declaring that it has the right of access at any and all times to the residents and their records and also sought an injunction enjoining defendant nursing homes from denying MHLS such access.
Defendant nursing homes answered arguing, among other things, that because MHLS has jurisdiction only over facilities required to obtain operating certificates and OMH has determined that the nursing homes are not required to have one, MHLS was without authority to access the residents.
At some point during the litigation, defendant nursing homes shut down the NBUs.*fn1 Thus, defendant nursing homes no longer maintain discrete units in which the NBU patients reside.
After motion practice not relevant here and significant discovery, both parties moved for summary judgment. Supreme Court granted defendant nursing homes' motion and dismissed the complaint. The Appellate Division modified Supreme Court's order by remitting the matter to Supreme Court for, among other things, entry of a judgment declaring that MHLS does not have the right of access to the mentally ill residents of NBUs of defendant nursing homes (Hirschfeld v Teller, 50 AD3d 855).
This Court granted MHLS leave to appeal. We now affirm.
MHLS is statutorily mandated to provide legal services and assistance to individuals with mental disabilities. Such mandate is delineated in Mental Hygiene Law §47.01(a), which provides, in relevant part:
"There shall be a mental hygiene legal service of the state in each judicial department. The service shall provide legal assistance to patients or residents of a facility as defined in section 1.03 of this chapter, or any other place or facility which is required to have an operating certificate pursuant to article sixteen or thirty-one of this chapter, and to persons alleged to be in need of care and treatment in such facilities or places, and to persons entitled to such legal assistance as provided by article ten of this chapter" (§ 47.01 [a]).
Thus, by statute, MHLS's jurisdiction is limited to two categories of facilities: (1) facilities defined in Mental Hygiene Law § 1.03 and (2) other places that are required to have an OMH operating certificate. MHLS claims that defendant nursing homes fall within the designation "any other place or facility which is required to have a operating certificate pursuant to . . . [Article 31 of the MHL]." Article 31 of the Mental Hygiene Law vests OMH with the exclusive authority to issue operating certificates to facilities providing services to the mentally disabled. But not every facility that treats the mentally disabled requires an operating certificate from OMH. 14 NYCRR part 70 "establish[es] an all inclusive set of categories, named classes, to which all providers of services to the mentally disabled subject to the requirement to obtain an operating certificate" will be assigned (14 NYCRR 70.1[a]). The Commissioner determines if a provider is subject to OMH licensure on the basis of three factors: "characteristics of the persons served; characteristics of the services provided; and the auspices of the provider of services" (14 NYCRR 70.1[b]).
In support of their motion to dismiss the complaint, defendant nursing homes submit the deposition testimony of OMH's Director of Inspection and Certification that OMH did not have jurisdiction over defendant nursing homes and, as a result, OMH did not exercise any licensing jurisdiction. This decision was based, in part, on a site report prepared by OMH's field office.
In opposition, MHLS does not challenge OMH's authority to make a licensing determination, nor does it challenge OMH's decision not to license defendant nursing homes. MHLS claims OMH's decision not to require an operating certificate is of no import. Rather, MHLS argues that the dispositive issue is whether the facilities themselves are subject to licensing because they provide residential services to the mentally disabled.
But precisely which facilities are, in fact, subject to OMH licensure is a matter committed, in the first instance, to the Commissioner's discretion and expertise. Here, OMH decided that licensure was not required. Because only OMH is authorized to determine whether a facility is required to have an operating certificate and MHLS's jurisdiction is expressly limited to licensed facilities, MHLS has failed to raise ...