Opinion
3303/08.
Decided January 15, 2009.
Mental Hygiene Legal Services, Staten Island, NY, Attorney for Petitioner.
Attorney General's Office, New York, NY, Attorney for Respondent.
The Petitioner J.R., a patient at South Beach Psychiatric Center, moves for an order granting him a rehearing and review of Justice Robert J. Collini's order of October 20, 2008 granting Richmond University Medical Center's application for retention and transfer to South Beach Psychiatric Center. Justice Collini found Petitioner to be mentally ill and in need of further hospital care and treatment from this day until Petitioner exhibits symptomatic relief but not for a period beyond December 19, 2008. The order also permitted Richmond University Medical Center to transfer Petitioner to South Beach Psychiatric Center.
Pursuant to Section 9.35 of the Mental Hygiene Law, Petitioner requested and was granted a rehearing by a jury before a judge other than Justice Collini. A jury trial was scheduled for November 24, 2008 but was adjourned on consent of the parties to December 9, 2008, in order to obtain the report of an independent evaluator appointed by the court. The case was adjourned again to December 16, 2008. The parties were prepared to proceed to jury selection, however, because of the holidays and continued trials, the court was unavailable and adjourned the matter to January 5, 2009.
The Respondent, South Beach Psychiatric Center, now moves to dismiss Petitioner's application for a rehearing and review of Justice Collini's retention order of October 20, 2008 since the retention order expired on December 19, 2008, relying on the case of Crumpley v. Wack, 212 Ad2d 299 (1st Dept. 1995). In the meantime, South Beach Psychiatric Center filed a new petition to retain the petitioner which was pending on January 5, 2009, the date the rehearing was scheduled to begin.
The court in Crumpley addressed the same issues raised in the instant motions. Specifically, the court in Crumpley stated "the statutory scheme links the right to a jury rehearing and review to the existence of a valid retention order." Here, as in the Crumpley case, the retention order had expired and a hearing had yet to be held with respect to the pending application for a superseding retention order.
This court is mindful of the cases cited by Petitioner, specifically, Matter of Delores I, 214 AD2d 1021 (4th Dept. 1995), which arrived at an opposite conclusion.
Accordingly, the Petitioner's motion for a rehearing and review is denied as moot and the Respondent's motion to dismiss is granted.
This shall constitute the decision and order of the court.