Dennis Buthy had a long history of mental illness and antisocial behavior. "When he was in fifth grade, he punched a teacher and was transferred to a disciplinary school. While in high school, he exposed himself to his sister and her girl friend. He was expelled from college for drinking and assaultive behavior.
In November, 1964 his father filed a complaint alleging that he had exposed himself to his sisters, and he was ordered by a Family Court Judge to live away from home.
In November, 1965 he was admitted to E. J. Meyer Memorial Hospital where his condition was diagnosed as alcoholism, passive aggressive personality with a homosexual component. On December 20 of that same year he was again admitted to E. J. Meyer after an attempted rape of his 21-year-old sister. He denied making a sexual assault on her but admitted hitting her and also that he had kicked women in the street without provocation.
He attacked his mother in January 1966, dragged her into a bedroom, ripped her clothes off and beat her until she was able to escape and run from the house. In March of that same year, he hit a strange girl on the street without provocation, Imocking out two of her teeth, and was arrested and charged with assault in the third degree; later that month he was admitted to Buffalo State Hospital as a voluntary patient. April 26, .1966 he was released with a diagnosis indicating a severe character disorder, with the use of alcohol to facilitate the acting out of aggressive, sadistic impulses. On May 17, 1966 he was again admitted to E. J. Meyer on the order of a City Court Judge after charges had been placed alleging that he forced his 11-year-old sister to disrobe and perform fellatio on him and had torn her vagina with his finger. A report of a staff psychologist stated: “ Patient himself theorizes in schizophrenic fashion that by attacking women who can give birth to life, he can symbolically kill life, in a general way that is women represent life which he wants to kill, so he strikes out at them. * * * this combined with his anger towards women generally, his lack of impulse control and his belief that by attacking women he can kill life, makes him highly dangerous. ’ ’ He was transferred to Buffalo State Hospital on August 2,1966 and on August 4 a mental examination indicated he had an urge to beat up women to whom he was attracted. On August 21 he attempted to assault another patient with a knife. On September 16, 1966, one of the staff’s psychiatrists informed Buthy’s father that he was not mentally ill but was dangerous. Notes of a staff meet*55ing of psychiatrists held on September 23, 1966 also stated that he was dangerous.
After some correspondence about January 2, 1967, the Director of Buffalo State Hospital informed his father that he was concerned that he might commit further violent acts. However his father requested his release, and on February 7, 1967 a committee of three physicians, convened to consider his request, concluded that he should be released.
He was admitted to E. J. Meyer on May 13, 1967, discharged and again admitted on May 19, 1967. A psychiatrist there noted that he was ‘ ‘ homicidal, dangerous, and certifiable ’ ’ but he was released on May 24, 1967. The final diagnosis on his release from Meyer was that he was ' ‘ impulsive, homicidal, and dangerous ” but “ not ‘ psychotic ’ today ”.
On June 15, 1967 he was again admitted to Buffalo State Hospital on the certificate of two doctors after he attempted to commit suicide. The certification noted, ‘ ‘ He wants to kill himself. He hates women including his mother, admires Speck (in Chicago) and wants to imitate him. ’ ’ and that11 The condition of this patient is such as to require treatment in hospital. He is felt to be extremely dangerous.”
Buthy asked to be released on June 20, 1967 but was told that he would not be discharged unless his father signed him out. Later that same day, Buthy’s mother requested that he be released in her custody and informed a staff psychiatrist that his father would pay for his support and psychiatric care. On that day also, a committee of three physicians, formed to consider his discharge, reported: ‘ ‘ It was the consensus of opinion that this patient was not psychotic and that the treatment in the hospital was without any value since it did not represent an indication of the patient’s motivation for any change. It was further the consensus of opinion of the committee that this man is a potentially dangerous psychopath who has to be handled by a firm insistence that he carry the responsibility for his acts. ’ ’ Buthy was released that same day.
On August 4, 1967 he lived up to his earlier threats to harm women and his prognosis of vicious propensities by brutally assaulting claimant Patricia Cameron. His conviction of assault in the first degree was reversed by this court because the People failed to prove he was sane. (People v. Buthy, 33 A D 2d 986.)
The State’s position at the trial and on this appeal was that he could not be retained in the hospital because he was not mentally ill, although he was a dangerous psychopath, and he had to be released. Subdivision 8 of section 2 of the Mental Hygiene Law provides: “A ‘ mentally ill person ’ means any *56person afflicted with mental disease to such an extent that for his own welfare or the welfare of others, or of the community, he requires care and treatment ’ A psychiatrist for claimant testified that a person who was a dangerous psychopath was mentally ill. The State’s psychiatrists equated mental illness with psychosis and their diagnosis was that he was not psychotic. That diagnosis, as shown by the record, was that although Buthy was without mental disorder, he had a psychopathic personality with asocial and amoral trends.
The majority would absolve the State from liability because the diagnosis that Buthy was not mentally ill was a matter of medical judgment. While the diagnosis was a medical judgment, the decision to release him was not. Without disputing whether Buthy was mentally ill, he should not have been released since it was undisputed that he was dangerous to himself and the community. His history and the report of the three psychiatrists made the day he was discharged clearly showed this. The majority places great emphasis on the psychiatrists’ belief that they had to release a person who was not psychotic and would base the right of a patient to release on that narrow ground.
In the absence of a demand for a hearing, Buthy could have been retained under section 73 of the Mental Hygiene Law for a period of 60 days and, thereafter, the director could have applied for a court order directing Buthy’s continued retention on the grounds that he needed further care and treatment.
Section 87 (subd. 1, par. b) of the Mental Hygiene Law provides that the hospital “ may ”, not that it “ must ”, discharge a patient who is not mentally ill. This provision that such a patient “may” be released is supplemented by 14 NYCBB 37.2. That section, established by the Commissioner of Mental Hygiene under the authority of subdivision 4 of section 12 of the Mental Hygiene Law, provides: “ No patient in any hospital or institution shall be released who in the judgment of the director or person in charge is homicidal, suicidal, destructive or dangerous either to himself or others.” That section is not limited, as stated by the majority, to patients released on a convalescent or community status. That it applies to the release of all patients is made clear by a reading of 14 NYCBB 37.3 which provides: ‘1 All patients who have been released from a State hospital or school are eligible to receive aftercare services. Patients placed on convalescent or community status receive aftercare privileges as a condition for such status. ’ ’ By differentiating between ‘ ‘ All patients ’ ’ and ‘ ‘ Patients placed on convalescent or community status ” it is clear that the preceding section applies to the release of all patients. Further, *57patients are ‘‘ placed on” convalescent or community status. Such patients are not ‘1 released ’ \
Even if Buthy was not mentally ill, he was mentally disabled which means ‘ ‘ a person who is mentally ill, mentally defective, epileptic or otherwise psychiatrically or neurologically disordered, and who requires care and treatment in a hospital or institution.” (Mental Hygiene Law, § 2, subd. 21.)
Under subdivision 1 of section 24 of the Mental Hygiene Law, a mentally disabled person may be hospitalized if his ‘1 condition is such as to endanger his own person, or the person and property of others ”. That is a rather accurate description of the patient, Buthy.
The State is liable in the operation of its mental hospitals for risks reasonably to be foreseen. (Flaherty v. State of New York, 296 N. Y. 342 and Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40.) In Scolavino v. State of New York (297 N. Y. 460), the State was held liable for an assault by an inmate of a mental hospital because the risk was foreseeable and the hospital failed to take necessary precautions. In Weihs v. State of New York (267 App. Div. 233) and Jones v. State of New York (267 App. Div. 254), the State was held liable for injuries caused by escaped mental patients who were known by the hospital authorities to be dangerous.
Here, the State hospital authorities concede that their patient, Buthy, was a 11 potentially dangerous psychopath ’ ’ with a long history of bizarre sexual and assaultive conduct who had threatened future attacks on women; yet they voluntarily discharged him into the community in violation of rules of the Department of Mental Hygiene and in spite of the fact that they had ample authority to detain him. This action was not based on a medical judgment that the patient was probably harmless but upon a mistaken and careless, if not reckless, conclusion that they were without power to hold a patient known to be dangerous. Under these circumstances, the State should be held liable for the negligent failure of its employees to utilize the State’s power to protect the community, particularly the claimant, from a risk reasonably to be anticipated. (Dunn v. State of New York, 34 A D 2d 267.).
Consequently, I vote to affirm the judgment.
Del Vecchio, J. P., and Henry, J., concur in opinion by Gabrielli, J. Mottle, J., dissents and votes to affirm in opinion, in which Marsh, J., concurs.
Judgment reversed, on the law and facts, without costs and claim dismissed.