Bronx Psychiatric Ctr. v. Gary F. (In re Gary F.)

• Decision Date: 11 October 2016
• Citation: 143 A.D.3d 495,39 N.Y.S.3d 414,2016 N.Y. Slip Op. 06655
• Parties: In re GARY F. Bronx Psychiatric Center, Petitioner–Appellant, v. Gary F., Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 495

39 N.Y.S.3d 414

2016 N.Y. Slip Op. 06655

In re GARY F.Bronx Psychiatric Center, Petitioner–Appellant,

v.Gary F., Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Oct. 11, 2016.

Eric T. Schneiderman, Attorney General, New York (Betnany A. Davis Noll of counsel), for appellant.

Marvin Bernstein, Mental Hygiene Legal Service, New York (Sadie Z. Ishee of counsel), for respondent.

MAZZARELLI, J.P., SWEENY, ACOSTA, MOSKOWITZ, GESMER, JJ.

Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about May 23, 2016, which, after a hearing pursuant to Mental Hygiene Law (MHL) § 9.33

, denied the application of petitioner Bronx Psychiatric Center for the continued involuntary retention of respondent for a period not to exceed six months, and ordered him to be released, unanimously affirmed, without costs.

The court properly denied petitioner's application for continued involuntary retention of respondent pursuant to MHL § 9.33

, based on the court's finding that petitioner failed to “ ‘establish, by clear and convincing evidence, that the patient is ... in need of continued, supervised care and treatment’ ” for his undisputed mental illness, and that he “ ‘poses a substantial threat of physical harm to himself and/or others' ” (Matter of Anonymous v. Carmichael, 284 A.D.2d 182, 184, 727 N.Y.S.2d 408 [1st Dept.2001]

). Although respondent's treating psychiatrist stated in conclusory fashion that the requirements for continued involuntary retention were met, the court reasonably rejected these conclusions on the ground that they were not strongly supported by the evidence (see Matter of

Charles T. v. Sanchez, 215 A.D.2d 235, 626 N.Y.S.2d 492 [1st Dept.1995] ). The psychiatrist indicated that respondent recognized his mental illness, that he had been compliant with his medication regimen, and that his treatment in the facility for more than two years had alleviated the manic symptoms he had initially presented upon admission. The psychiatrist acknowledged that respondent's medications and therapy programs would remain readily available to him on an outpatient basis, and the psychiatrist provided no reason to doubt respondent's claim that he would continue taking his medication once released (compare id.

with Matter of

Anonymous, 284 A.D.2d at 184, 727 N.Y.S.2d 408 ).

Respondent has a history of sexual preoccupation, sexual misconduct, and sexual impulsivity. However, the court gave little weight to the allegations of recent misconduct in the absence of any eyewitness testimony and in light of respondent's denials, and there is no basis for disturbing the court's weighing of the evidence. The remaining hearsay statements that respondent had acted inappropriately were unaccompanied by any detail, including when the incidents allegedly occurred. Significantly, the psychiatrist, the only witness called to testify at the hearing, did not indicate that he had ever personally observed respondent engaging in any misconduct. In the absence of any corroboration of such incidents or any information about their chronology, the court properly concluded that petitioner had failed to establish that respondent remained in need of involuntary confinement in a psychiatric facility as of the time of the hearing.

It does not avail petitioner to argue that respondent needed to be retained in order to begin taking a new medication. The...