| Matter of Melvin S. |
| 2008 NY Slip Op 10632 [57 AD3d 1002] |
| December 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of Melvin S., Appellant. Brookdale Hospital,Respondent. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, LakeSuccess, N.Y. (Eric Broutman of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law § 9.33 to retain a patient in a mentalhealth care facility for involuntary psychiatric care for a period not to exceed six months, thepatient appeals from an order of the Supreme Court, Kings County (Cutrona, J.), dated March 6,2008, which, after a hearing, granted the petition and directed his retention involuntarily for aperiod of six months.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isdenied, and the proceeding is dismissed.
Although the period of retention directed by the order appealed from has expired, under thecircumstances, the matter qualifies as an exception to the mootness doctrine, in that, inter alia,the issue presented is likely to recur and may in the future evade review (see Matter of HarryM., 96 AD2d 201, 202 [1983]).
It was incumbent upon the petitioner to prove, by clear and convincing evidence, that thepatient at issue was mentally ill, in need of further treatment, and posed a substantial threat ofphysical harm to himself or others, such that his retention is warranted (see Matter of John N.,52 AD3d 834, 835 [2008]). In this [*2]case, the petitionerfailed to show by clear and convincing evidence that the patient's mental illness posed asubstantial threat of physical harm to himself or others (see Matter of Julio R., 16 AD3d423, 424 [2005]; Matter of Francine T., 302 AD2d 533, 533-534 [2003]; Matter ofGilliard v Sanchez, 219 AD2d 500, 501 [1995]). Miller, J.P., Angiolillo, Belen andChambers, JJ., concur.