| Matter of Walsh-Tozer v Luis G. |
| 2014 NY Slip Op 04500 [118 AD3d 897] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Mary Ann Walsh-Tozer,Respondent, v Luis G., Appellant. |
Mental Hygiene Legal Service, New York, N.Y. (Rachel Saunders, Timothy M.Riselvato, and Dennis B. Feld of counsel), for appellant.
Thomas E. Humbach, County Attorney, New City, N.Y. (Thomas M. Mascola andBrigitte M. Nahas Botta of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law §§ 9.35 and 9.60(m) for the involuntary assisted outpatient treatment of Luis G., in which Luis G.petitioned for a rehearing and review of an assisted outpatient treatment order andjudgment (one paper) of the Supreme Court, Rockland County (Alfieri, J.), dated January7, 2013, finding that Luis G. was in need of involuntary assisted outpatient treatment anddirecting him to comply with a program of involuntary assisted outpatient treatment for aperiod of one year retroactive to and commencing on December 29, 2012, Luis G.appeals, as limited by his brief, from so much of an amended order and judgment (onepaper) of the same court (Walsh II, J.), dated March 22, 2013, as, after a rehearing andreview, in effect, directed that the order and judgment dated January 7, 2013, remain infull force and effect.
Ordered that the amended order and judgment is reversed insofar as appealed from,on the law, without costs or disbursements, after rehearing and review, the order andjudgment dated January 7, 2013, is vacated, the petition for the involuntary assistedoutpatient treatment of Luis G. is denied, and the proceeding is dismissed.
Generally, "an appeal will be considered moot unless the rights of the parties will bedirectly affected by the determination of the appeal and the interest of the parties is animmediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50NY2d 707, 714 [1980]; seeMatter of Yuri M. [Karpati], 107 AD3d 999, 1000 [2013]). "However, anexception to the mootness doctrine permits courts to preserve for review important andrecurring issues which, by virtue of their relatively brief existence, would be renderedotherwise nonreviewable" (Matter of Gail R. [Barron], 67 AD3d 808, 810[2009]).
Luis G. appeals from so much of an amended order and judgment dated March 22,2013, as, upon rehearing and review, directed that a prior order and judgment compellinghim to [*2]participate in involuntary assisted outpatienttreatment until December 29, 2013, was to remain in force and effect. The amendedorder and judgment already has expired by its own terms. Although the appeal from theamended order and judgment generally would be moot, the issues raised on appeal fallwithin the exception to the mootness doctrine. There is an issue as to whether theSupreme Court properly determined that the petitioner demonstrated that Luis G. met allthe criteria for involuntary assisted outpatient treatment (hereinafter AOT), as set forth inMental Hygiene Law § 9.60. This issue has a likelihood of recurrence,either between the petitioner and Luis G. due to his chronic mental illness, or betweenthe petitioner and other patients who may be the subject of involuntary AOTproceedings. In addition, this issue would typically evade appellate review, asinvoluntary AOT orders have a maximum duration of six months unless extended by asubsequent 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 andis substantial and novel (see Mental Hygiene Legal Servs. v Ford, 92 NY2d 500,505-506 [1998]; Matter of Gail R. [Barron], 67 AD3d at 811).
The petitioner failed to demonstrate by clear and convincing evidence that Luis G.met the criteria of Mental Hygiene Law § 9.60 (c) (4), as no evidenceindicated that he was hospitalized twice during the 36 months prior to the filing of thepetition for involuntary AOT, as required by statute (see Mental Hygiene Law§ 9.60 [c] [4] [i]; [j] [2]). Moreover, the petitioner failed to establish byclear and convincing evidence that, during the 48 months prior to the filing of thepetition for involuntary AOT, Luis G. engaged in any act of serious violent behaviortoward himself or others, or threatened or attempted to cause serious physical harm tohimself or others (see Mental Hygiene Law § 9.60 [c] [4] [ii]; [j][2]; Matter of William C.,64 AD3d 277, 284 [2009]). Instead, at most, the petitioner demonstrated that, as ofMay 2012, Luis G. was noncompliant with his treatment for mental illness, resulting inan incident in which, while agitated, he may have pushed his wife. However, there wasconflicting and sharply disputed evidence as to whether Luis G. actually pushed his wife,and, even if he did, the petitioner failed to demonstrate that Luis G.'s conduct rose to thelevel of serious violent behavior (see Mental Hygiene Law§ 9.01).
Due to the petitioner's failure to demonstrate that Luis G. met all of the criteria forinvoluntary AOT, as set forth in Mental Hygiene Law § 9.60 (c), it failed toestablish by clear and convincing evidence that involuntary AOT was warranted(see Mental Hygiene Law § 9.60 [j] [2]; Matter of Gail R.[Barron], 67 AD3d at 811-812).
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination. Dillon, J.P., Chambers, Hall and Maltese, JJ.,concur.