
    In the Matter of David Bezio et al., Appellants, v New York State Office of Mental Retardation and Developmental Disabilities, Respondent.
    Argued May 10, 1984;
    decided June 14, 1984
    
      APPEARANCES OF COUNSEL
    
      Bruce S. Dix, James T. Donnelly, David M. LeVine and Michael F. O’Brien for appellants.
    
      Robert Abrams, Attorney-General (Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition should be reinstated, without prejudice to an application for permission to replead.

We agree with the Appellate Division’s conclusion that section 15.23 of the Mental Hygiene Law is concerned with the suitability of the individual to remain in the status of a voluntary resident, rather than the suitability or appropriateness of the treatment being administered. That the Legislature so intended is evident from the requirement of the section that the court consider not only the resident’s suitability but also “his willingness to so remain.” But the fact that the petition asked for more rélief than can be granted under the particular section does not affect its sufficiency to state a cause of action (cf. CPLR 3017, subd [a]). Therefore, it should not have been dismissed.

It may be that petitioners can state a cause of action within the holding of our decision in Klostermann v Cuomo (61 NY2d 525), which had not been decided when the Appellate Division considered this case. To the extent that they seek to enforce rights under pertinent statutes as distinct from litigating the wisdom of the medical policy underlying the treatment they are receiving, they may be able to state a cause of action (compare Klostermann v Cuomo, 61 NY2d 525, supra, and Bruno v Codd, 47 NY2d 582, with Jones v Beame and Bowen v State Bd. of Social Welfare, 45 NY2d 402; and see Schwartz, Political Question Doctrine in New York, NYLJ, May 15, 1984, p 1, col 1). Rather than exercise the power given us by CPLR 103 to convert the present petition, framed as it was to bring the right to treatment issue within the scope of section 15.23 of the Mental Hygiene Law, to a complaint, we deem it the better course, particularly since we are informed that the treatment plan for, and status of, some of the petitioners has changed since the original pleading was drawn, to reverse and reinstate the pleading, without prejudice, however, to an application to Supreme Court, Schenectady County, for permission to replead.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.  