
    In the Matter of Naila Y., Respondent, v Jose R. Sanchez, Appellant.
    [626 NYS2d 153]
   Order, Supreme Court, Bronx County (David Levy, J.), entered on or about November 2, 1994, which directed that respondent Naila Y. be released from the Bronx Psychiatric Center after a rehearing and review pursuant to section 9.35 of the Mental Hygiene Law, unanimously affirmed, without costs.

In order for a hospital to retain a patient for involuntary psychiatric care, it must establish, by clear and convincing evidence, that the patient is mentally ill and in need of continued care and treatment, and that she poses a substantial threat of physical harm to herself or others (Matter of Seltzer v Hogue, 187 AD2d 230, 237).

The mere fact that respondent, who suffers from mental illness, was hungry and homeless at the time she voluntarily presented herself at the hospital does not evidence a "neglect or refusal to care for [herself]” from which it may be concluded that she presents a " 'serious harm’ to [her] own well-being” (Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340, 362, appeal dismissed 70 NY2d 972). The evidence established that respondent, who had lived alone and provided for her own needs for a period of approximately 20 years, had lived in a boarding house just weeks before her hospitalization. While there, she paid a monthly rent from disability monies which she received and had been saving for some time. Respondent, who was otherwise healthy, expressed both an understanding of her need to care for herself upon release and a plan to do so. Concur—Ellerin, J. P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.  