| Matter of Rebecca Y. (Brunswick Hall Psychiatric Ctr.) |
| 2010 NY Slip Op 06641 [76 AD3d 1028] |
| September 21, 2010 |
| Appellate Division, Second Department |
| In the Matter of Rebecca Y., Respondent. Brunswick HallPsychiatric Center, Appellant. |
—[*1] Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Rachael E. Seevers, andDennis B. Feld of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law § 9.13 for the continued retention ofRebecca Y. for involuntary care and treatment at Brunswick Hall Psychiatric Center, thepetitioner appeals from an order of the Supreme Court, Suffolk County (Bivona, J.), dated March26, 2010, which, upon the application of Rebecca Y., dismissed the proceeding and directed herrelease. By decision and order on motion of this Court dated April 5, 2010, enforcement of theorder was stayed pending hearing and determination of the appeal.
Ordered that the order is reversed, on the law, without costs or disbursements, the petition isreinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a determinationon the merits.
In October 2009 Brunswick Hall Psychiatric Center (hereinafter Brunswick Hall) admittedRebecca Y. (hereinafter the patient) for care and treatment. In February 2010 the patient, who atthe time was a voluntary patient, requested her release. Immediately thereafter, Brunswick Hallcommenced this proceeding pursuant to Mental Hygiene Law § 9.13 for the continuedretention of the patient for involuntary care and treatment.
At the hearing on the petition, counsel for the patient made an oral application to dismiss thepetition on the ground that it was jurisdictionally defective. Specifically, counsel argued thatbecause the two certificates from the patient's examining physicians were dated one day after thepetition was signed, Brunswick Hall had failed to comply with Mental Hygiene Law§§ 9.13 and 9.33. After a recess, Brunswick Hall submitted two new certificatesfrom the patient's examining physicians and a supplemental petition, which was served upon thepatient's counsel. Thereafter, the Supreme Court (Tanenbaum, J.) denied the patient's counsel'soral application, and the hearing was adjourned. On a subsequent date, the patient's counselrenewed his prior oral application to dismiss the petition. In the order appealed from, upon thepatient's application, the Supreme Court dismissed the proceeding and directed the patient'srelease. We reverse.[*2]
While Brunswick Hall contends that the law of the casedoctrine prevented the Supreme Court from dismissing the proceeding on the ground that it wasjurisdictionally defective, "the doctrine of law of the case is not binding upon an appellate court"(Wynkoop v County of Nassau, 139 AD2d 731, 732 [1988]; see Donahue v Nassau County HealthcareCorp., 15 AD3d 332, 333 [2005]). Here, the Supreme Court erred in dismissing theproceeding upon the patient's counsel's renewed application. Although annexed to the initialpetition were certificates from the patient's treating physicians which were dated one day after thepetition was signed, that minor defect did not require that the proceeding be dismissed, in light ofthe State's "interest in providing care to the mentally ill and in preventing violence to thementally ill and others" (People ex rel. Noel B. v Jones, 230 AD2d 809, 811 [1996]; cf. Matter of Harvey S., 38 AD3d908 [2007]; Matter of Thomas S., 58 AD3d 1063 [2009]). In any event, BrunswickHall promptly cured the defect and served the supplemental petition upon the patient's counsel.
Accordingly, we reinstate the petition and remit the matter to the Supreme Court, SuffolkCounty, for a determination on the merits. Dillon, J.P., Florio, Leventhal and Chambers, JJ.,concur.