| In Matter of Frank H. (anonymous) |
| Motion No: 2015-01523 SC |
| Slip Opinion No: 2015 NY Slip Op 80688(U) |
| Decided on July 23, 2015 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
of the State of New York for the 9th & 10th judicial Districts
ANTHONY MARANO, P.J.
ANGELA G. IANNACCI
JERRY GARGUILO, JJ.
DECISION & ORDER ON MOTION
| In The Matter of Frank H. (Anonymous), Respondent. Arthur E. Flescher, etc., Appellant. |
Motion by appellant, in effect, for summary reversal of so much of an order of the Suffolk County Court (Steven A. Lotto, J.), entered February 4, 2015, as, upon granting the branch of respondent's motion seeking an order requiring appellant to prove every element of the petition for an extension of assisted outpatient treatment pursuant to Mental Hygiene Law § 9.60, in effect directed that appellant demonstrate, at a hearing on the petition, that the time restrictions of Mental Hygiene Law § 9.60 (c) (4) (ii) were satisfied.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion, in effect, for summary reversal is granted, the order entered February 4, 2015, insofar as appealed from, is reversed, without costs, and so much of the order as in effect directed that appellant demonstrate, at a hearing on the petition, that the time restrictions of Mental Hygiene Law § 9.60 (c) (4) (ii) were satisfied is vacated.
Contrary to respondent's contention on this motion, the portion of the County Court's order at issue is appealable, as an appeal may be taken from an order deciding a motion which goes to the very merits of the controversy, since the determination of the motion affects a substantial right of a party (see CPLR 5701 [a] [2] [iv], [v]; see also Parker v Mobil Oil Corp., 16 AD3d 648 [2005], affd on other grounds 7 NY3d 434 [2006]).
Furthermore, contrary to the determination of the County Court, appellant is not required to demonstrate that the time restrictions included in Mental Hygiene Law § 9.60 (c) (4) were satisfied, as Mental Hygiene Law § 9.60 (k) specifically provides that those time restrictions are not applicable to determinations on petitions for additional periods of treatment.
The remedy of summary reversal is appropriate here because of "the existence of clear legal error and of exigent circumstances" (34 Crescent St. Assoc. LLC v U.S. Fish Depot Corp., 4 Misc 3d 143[A], 2002 NY Slip Op 50720[U] [App Term, 2d & 11th Jud Dists 2002]; see also Hegeman Asset LLC v Smith, 5 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2004]).
Marano, P.J., Iannacci and Garguilo, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk