| Matter of Anthony H. (Karpati) |
| 2011 NY Slip Op 02676 [82 AD3d 1240] |
| March 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anthony H., Appellant; Adam Karpati,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Susan J.Guercio, and Drake A. Colley of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law § 9.60 to authorize assistedoutpatient treatment, Anthony H. appeals from a resettled order and judgment (one paper) of theSupreme Court, Kings County (Cutrona, J.), dated May 19, 2010, which, after a hearing, andupon the denial of his motion, in effect, to dismiss the petition, granted the petition and directedhim to comply with a program of assisted outpatient treatment for a period of six months.
Ordered that the resettled order and judgment is affirmed, without costs or disbursements.
The appellant, Anthony H., suffers from schizophrenia with cannabis abuse. The instantpetition was filed on January 26, 2010, seeking an order directing Anthony H. to comply withassisted outpatient treatment (hereinafter AOT). The petition alleged that Anthony H. had beenhospitalized multiple times as a result of failing to take his medication. At the ensuing hearing,the petitioner submitted hospital records which demonstrated that Anthony H. was hospitalizedon April 20, 2007, and again on November 5, 2008, as a result of his failure to take hismedication. Anthony H. moved, in effect, to dismiss the petition on the ground that these recordswere inadmissible hearsay. The Supreme Court denied the motion, and in a resettled order andjudgment dated May 19, 2010, the Supreme Court, finding that Anthony H. met all of the criteriafor AOT, granted the petition and directed him to comply with an AOT program for a period ofsix months. Anthony H. appeals.
Initially, we decline to dismiss the appeal as academic. Generally, an appeal "will beconsidered moot unless the rights of the parties will be directly affected by the determination ofthe appeal and the interest of the parties is an immediate consequence of the judgment"(Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Saratoga CountyChamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540US 1017 [2003]). But an exception to the mootness doctrine permits courts to preserve forreview important and recurring issues which, by virtue of their relatively brief existence, wouldbe rendered otherwise nonreviewable (see Matter of M.B., 6 NY3d 437, 447 [2006]).
Here, the resettled order and judgment dated May 19, 2010, has already expired by its ownterms. Although the appeal from the resettled order and judgment generally would be academic,the issues raised on appeal fit within the mootness exception. There is an issue as to whether thediagnoses in Anthony H.'s medical records, stating that his hospitalizations resulted from hisfailure [*2]to take his medication, constituted admissibleevidence to support the AOT order. This issue has a likelihood of repetition, either between thepetitioner and Anthony H. due to his chronic mental illness, or between the petitioner and otherpatients who may be the subject of AOT proceedings. In addition, this issue would typicallyevade appellate review, as AOT orders have a maximum duration of six months unless extendedby a subsequent court order (see Mental Hygiene Law § 9.60 [j] [2]; [k]). Further,the issue raised on appeal has not been the subject of prior appellate review and is substantial andnovel (see Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 505-506 [1998];Matter of Gail R. [Barron], 67 AD3d 808, 811 [2009]).
Mental Hygiene Law § 9.60, commonly known as Kendra's Law, was enacted toprovide "a system of assisted outpatient treatment (AOT) pursuant to which psychiatric patientsunlikely to survive safely in the community without supervision may avoid hospitalization bycomplying with court-ordered mental health treatment" (Matter of K.L., 1 NY3d 362, 366[2004]). Among other things, the statute requires the petitioner to prove, by clear and convincingevidence, that the patient "has a history of lack of compliance with treatment for mental illnessthat has . . . at least twice within the last thirty-six months been a significant factorin necessitating hospitalization" (Mental Hygiene Law § 9.60 [c] [4] [i]). Here, thepetitioner presented medical records which contained diagnoses that Anthony H.'shospitalizations were caused by his failure to take his medication. Contrary to Anthony H.'scontention, these records were admissible under the business record exception to the hearsayrule, because the diagnoses were relevant to his treatment, and could be used to develop adischarge plan that would ensure his safety (see People v Ortega, 15 NY3d 610, 615-620[2010]; cf. Ginsberg v North Shore Hosp., 213 AD2d 592 [1995]). We do not addressAnthony H.'s remaining contentions, which have been raised for the first time on appeal (seegenerally Schehr v McEvoy, 43 AD3d 899, 900 [2007]).
The Supreme Court therefore properly granted the petition. Mastro, J.P., Dillon, Balkin andMiller, JJ., concur.