Supreme Court, Onondaga County, July 24, 2023

Elizabeth S. Fortino, Director, Mental Hygiene Legal Service, Syracuse (Emily M. North of counsel), for respondent.

Costello, Cooney & Fearon, PLLC, Syracuse (Robert W. Connolly of counsel), for petitioner.

Currently before the court, in this proceeding brought pursuant to article 9 of the Mental Hygiene Law, which seeks court authorization to involuntarily retain respondent, Frank M., for psychiatric care, is a motion filed by respondent seeking an order directing that the proceedings in this matter be conducted in person. Specifically, respondent requests that the court, petitioner, and any witnesses all participate in person in the courtroom, as opposed to two-way [*2]videoconference. (NY St Cts Elec Filing [NYSCEF] Doc Nos. 4-6.)^[FN1] Petitioner has opposed respondent's application. (NYSCEF Doc Nos. 8-9.)

After carefully considering the parties' respective submissions and having heard and duly considered argument from counsel on July 19, 2023, respondent's motion is granted for the reasons set forth below.

The State of New York—along with the rest of the world—is emerging from the greatest social and governmental response to a public health crisis in living memory: the COVID-19 pandemic. During the sudden onset of the pandemic in March of 2020, society was forced to adapt to a new normal, including, among other things, business closures, masking requirements, and the concept of "social distancing." Though most federal and state courts initially closed their doors to prevent the spread of COVID-19, the New York State Unified Court System turned to short- and long-term solutions to ensure that the public{**80 Misc 3d at 527} continued to have access to our justice system.^[FN2] One such solution—embraced by nearly every court system in the country—was the implementation of virtual, or remote, proceedings held on online platforms.

Indeed, in relation to Mental Hygiene Law proceedings in New York State Supreme Court, Administrative Order (AO) of the Chief Administrative Judge of the Courts AO/144/21 was issued on May 11, 2021, which directed as follows:

"To the fullest extent possible, Mental Hygiene Law proceedings in which a petitioner or other necessary party is confined to a hospital or other medical facility—including but not limited to hearings pursuant to Mental Hygiene Law §§ 9.31 and 9.39 addressing patient retention or release, and the involuntary administration of medication—shall be conducted by means of remote audiovisual technology or telephone or when appropriate and in the discretion of the presiding judge by appearing in courtrooms, in hospitals or in hospital courtrooms. In no event will participants be penalized if compliance with the usual timetable for such proceeding is delayed for reasons relating to the coronavirus health emergency." (Admin Order of Chief Admin Judge of Cts AO/144/21; NYSCEF Doc No. 6, respondent's exhibit 2.)

Pursuant to this AO, dozens—if not hundreds—of Mental Hygiene Law proceedings were successfully conducted virtually in the Fifth Judicial District. Utilizing this format, the assigned Justice typically presided remotely from either a courtroom or chambers while counsel was also remote from their respective offices. The respondent, along with any witnesses, also testified remotely, [*3]often from the same room at the hospital. Thereafter, on February 22, 2022, the Administrative Judge of the New York State Supreme Court, Fifth Judicial District—recognizing the fluid and changing nature of the pandemic—issued a memorandum, which states, in pertinent part, that matters covered by Administrative Order AO/144/21 "may be heard In-Person, Virtually, or a hybrid of In-Person and Virtual, at the discretion of the Presiding Judge" (NYSCEF Doc No. 6, respondent's exhibit 6).{**80 Misc 3d at 528}

Despite the flexibility that this memorandum offered, almost all Mental Hygiene Law proceedings continued to be conducted 100% virtually. This is undoubtedly because one of the very few silver linings of the pandemic revealed the significant benefits that videoconferencing confers on civil litigation. Generally, such benefits include, among other things, reducing the cost and increasing the availability of legal services, additional flexibility in scheduling, and allowing judicial dockets to move with greater efficiency.^[FN3] The advancements in videoconferencing technology have made remote hearings almost indistinguishable from in-person proceedings. As a Supreme Court Justice from Queens County observed:

"[T]here have been great advancements in audio-video technology since the days of closed circuit television. In truth, the current technology has made closed-circuit television, which involved the use of expensive equipment, quite obsolete. Computer programs such as Skype and FaceTime are two examples of videotelephony software that allow individuals, using the Internet, to see and hear one another through devices such as computers, cell phones, and iPads. In short, it is an inexpensive means in which people can see and talk to one another in real time from remote locations. From a legal standpoint, it makes it possible for witnesses and litigants to give testimony that will be simultaneously transmitted into a courtroom, inexpensively and from great distances, thus allowing a jury to see and hear the individuals who testify. In fact, given that it allows a litigant or witness to provide a jury with a form of live testimony, it is, in some ways, much more reliable than admitting a deposition into evidence, even a videotaped one. This is especially so in this age of high-definition television and computer screens." (Nelson v City of New York, 60 Misc 3d 353, 357 [Sup Ct, Queens County 2018].)

According to petitioner, the benefits of virtual hearings in Mental Hygiene Law proceedings include not having to transport the respondent patients to the courthouse, reducing interruptions to the schedules of medical staff who typically testify during the proceedings—thereby allowing them to see more patients throughout the day—and the elimination of security {**80 Misc 3d at 529}concerns when patients are at the courthouse. Mental Hygiene Legal Service (MHLS) tacitly acknowledged during oral argument that, in many instances, its clients do not want to be transported for their hearings and, instead, prefer to remain at the hospital.

On June 5, 2023, after emergency conditions related to the pandemic began to subside, Administrative Order of the Chief Administrative Judge of the Courts AO/162/23 was issued, which rescinded AO/144/21. (NYSCEF Doc No. 6, respondent's exhibit 1.) Thereafter, on June 26, 2023, a memorandum from counsel's office at the New York State Office of Court Administration clarified that the rescission of AO/144/21 "was not intended to [*4]convey any new mandate. The rescission was simply meant to signal a return to the court's pre-COVID-19 posture." (NYSCEF Doc No. 6, respondent's exhibit 3.) MHLS promptly requested that all Mental Hygiene Law matters return to in-person proceedings, regardless of whether their clients intend to appear in person as well.

More specifically, MHLS argues that, before the onset of the COVID-19 pandemic, all Mental Hygiene Law hearings were conducted in person and hospitals were responsible for transporting patients to the courthouse, providing staff to travel with them, and producing the patient's physician for live testimony. MHLS further argues that its clients' liberty interests outweigh the convenience of the hospitals, whether for its staff, doctors, or security personnel. In support of its argument that these proceedings must be in person, MHLS largely relies on Matter of State of New York v Robert F. (25 NY3d 448 [2015]), and argues that neither consent nor exceptional circumstances are present to warrant a virtual hearing in this particular matter (see generally NYSCEF Doc No. 5, North affirmation).

In response, petitioner argues that, notwithstanding the rescission of AO/144/21, this court retains the discretion to conduct this matter virtually. Petitioner further argues that the right to face-to-face confrontation in a civil case is not absolute and, in any event, public policy and the reliability of virtual testimony—as proved by the successful use of remote hearings during the pandemic—satisfy the confrontation requirement. Petitioner takes issue with the fact that, in recent Mental Hygiene Law matters, no evidence has been presented establishing that the respondents themselves, as opposed to MHLS, have expressed a desire to exercise their right to live,{**80 Misc 3d at 530} in-person, testimony. Petitioner urges the court to determine whether the respondent, and not MHLS, is requesting an in-person proceeding on a case-by-case basis when considering whether to forgo a virtual hearing.

Finally, petitioner argues that the right to confrontation does not extend to a physician who testifies on behalf of the hospital in a Mental Hygiene Law matter. In support of this argument, petitioner cites Matter of Doe (13 Misc 3d 497 [Sup Ct, Oneida County 2006]), which held that, while a respondent patient in a Mental Hygiene Law proceeding has the right to be in person, "the petitioner's witness may remain at the remote site and testify via video conference in full satisfaction of the Confrontation Clauses of US Constitution amendment VI and NY Constitution, article I, § 6" (Matter of Doe, 13 Misc 3d at 503-504). In so ruling, the Doe court reasoned that CPLR 3117 (a) (4), which "allows taped depositions of physicians to be played without a showing of exceptional circumstances or unavailability" (id. at 503), supported petitioner's request to have the physician witness testify remotely, notwithstanding respondent's objection to same (id.).

For the reasons set forth below, the court finds that Robert F., and not Doe, is binding on this court and, absent respondent's consent to a remote proceeding or the existence of exceptional circumstances, this matter must be conducted in person.

A. The Court's Inherent Power to Permit Remote Testimony under Limited Circumstances

Under Judiciary Law § 2-b (3), "[a] court of record has power . . . to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." The Court of Appeals has held that this provision affords courts the discretion to conduct matters, including Mental Hygiene Law proceedings, remotely (see Matter of State of New York v Robert F., 25 NY3d 448, 453-454 [2015] ["We see no compelling reason why a trial court should have this discretion . . . in [*5]criminal trials, but not in Mental Hygiene Law proceedings"]). Indeed, "[l]ong before anyone had heard the words 'COVID-19' or 'social distancing,' trial courts used this authority to conduct proceedings by remote means, and appellate courts consistently upheld that authority" (Bonilla v State of New York, 71 Misc 3d 235, 237 [Ct Cl 2021]).{**80 Misc 3d at 531}

However, the Court of Appeals has also circumscribed this discretion, noting that "[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances" (Robert F., 25 NY3d at 454, quoting People v Wrotten, 14 NY3d 33, 40 [2009]).

In Robert F., respondent was determined to be a sex offender requiring civil management under article 10 of the Mental Hygiene Law. During the underlying dispositional hearing held pursuant to Mental Hygiene Law § 10.07 (f), Supreme Court permitted petitioner to recall its expert witness, a physician, "via live, two-way videoconference" (id. at 452). Respondent objected to the expert witness testifying remotely and subsequently appealed. The Court of Appeals determined that permitting the expert to testify remotely was error (id. at 454 ["Permitting Dr. Peterson to deliver her testimony via videoconference over respondent's objection without requiring a proper showing of exceptional circumstances was error"]). In so ruling, the Court held that "Supreme Court has the discretion to utilize live, two-way video testimony pursuant to its inherent power, but only where exceptional circumstances so require, or when all parties consent" (id. [emphasis added]). Notwithstanding this ruling, the Court held that the error in Robert F. was harmless "in light of the overwhelming evidence presented by the State" (id.).

Here, MHLS, on behalf of respondent, has not consented to this matter being conducted virtually. Accordingly, pursuant to Robert F., exceptional circumstances must be established. It does not appear that the Court of Appeals has specifically defined what constitutes an exceptional circumstance in the context of virtual testimony during a civil case. However, federal courts have found exceptional circumstances to exist when a witness is unavailable, their testimony is material, and allowing virtual testimony furthers the interests of justice.^[FN4] Given the rescission of AO/144/21 and the court's return to in-{**80 Misc 3d at 532}person operations, the COVID-19 pandemic no longer constitutes an exceptional circumstance (cf. Bonilla v State of New York, 71 Misc 3d 235, 238 [Ct Cl 2021] ["there is an exceptional circumstance in this instance: the COVID-19 pandemic"]; C.C. v A.R., 69 Misc 3d 983, 992 [Sup Ct, Kings County 2020] ["this global pandemic is an 'exceptional circumstance' allowing this court to proceed on all aspects of this [*6]proceeding . . . by virtual means"]; Ciccone v One W. 64th St., Inc., 69 Misc 3d 585, 592 [Sup Ct, NY County 2020]).

As noted above, petitioner generally describes several logistical, administrative, and security benefits to proceeding with virtual testimony. However, the court agrees with MHLS that petitioner's reasons for conducting a virtual hearing pale in comparison to the significant liberty interests at stake in this matter and are not otherwise exceptional (see Matter of Doe, 13 Misc 3d at 500 ["Alleged savings on transportation costs are not a compelling interest sufficient to deny the respondent's constitutional right to be personally present in court for the hearing. The petitioner failed to show a risk of injury to either the public, the respondent himself, court personnel, or the staff involved in transporting the respondent"]; Robert F., 25 NY3d at 454 [exceptional circumstance not present where "the State merely indicated that Dr. Peterson could not appear in court on short notice and was somehow limited by her remaining employment with an Office of Mental Hygiene facility"]).^[FN5] The court further notes that petitioner has not argued that any of its witnesses are unavailable, that respondent poses a heightened security threat, or that allowing virtual testimony{**80 Misc 3d at 533} furthers the interests of justice under the circumstances of this case.

B. Petitioner's Remaining Arguments

As discussed above, petitioner argues that respondent's right to confrontation does not preclude the use of remote testimony. "New York Constitution, article I, § 6 guarantees a civil litigant the right to personally appear at trial and confront witnesses" (Matter of Doe, 13 Misc 3d at 499; see also Matter of Donna K., 132 AD2d 1004, 1004 [4th Dept 1987] ["While every litigant has a fundamental right, guaranteed by the Due Process Clause of both the Federal and State Constitutions, to be present at every stage of the trial, this right is not absolute in civil actions" (citation omitted)]). Once again, before AO/144/21 was rescinded and Mental Hygiene Law proceedings were conducted virtually, respondents were physically present in the same hospital room as the petitioners' witnesses while they testified remotely. Under these circumstances, the respondent's right to confrontation was satisfied.^[FN6]

However, this court's reading of Robert F. does not suggest that satisfying the right to confrontation by means other than personally appearing in the courtroom operates as an exception to Robert F.'s central requirements for remote testimony—{**80 Misc 3d at 534}i.e., consent or exceptional circumstances. In other words, Robert F. dictates that testimony via videoconference should be the exception rather than the rule, particularly given that "live televised testimony is certainly not the equivalent of in-person testimony" (Robert F., 25 NY3d at 454). Accordingly, whether respondents in Mental Hygiene Law matters purportedly waive the right to confrontation—after that right has been asserted by counsel—by neglecting to personally attend an in-person hearing is immaterial given the Court of Appeals' directive that either consent or exceptional circumstances must be established before remote testimony is permitted.^[FN7]

Finally, petitioner appears to suggest that Robert F. is antiquated and should not be strictly followed considering the widespread use and adoption of remote proceedings during the COVID-19 pandemic. (NYSCEF Doc No. 8, Connolly affirmation ¶ 5.) Certainly, the Robert F. Court could not have anticipated the pandemic and the resulting assimilation of the court system and its users to remote proceedings. As discussed above, remote proceedings have largely been embraced and efforts are ongoing to further integrate technology and training to build upon the success and use of remote proceedings thus far. It is also this court's view that continuing remote proceedings in Mental Hygiene Law matters, particularly where the respondent him/herself does not personally appear, is appropriate.

Nonetheless, this court is bound by Court of Appeals' precedent, and it is ultimately for the Court of Appeals or the legislature to determine whether revisiting this issue, given the experiences and lessons learned during the pandemic, is appropriate (see Margerum v City of Buffalo, 148 AD3d 1755, 1758 [4th Dept 2017] ["It is axiomatic that the Appellate Division and the trial courts are 'court(s) of precedent and (are) bound to follow the holding of the Court of Appeals' "], quoting Jiannaras v Alfant, 124 AD3d 582, 586 [2d Dept 2015]).{**80 Misc 3d at 535}

Accordingly, it is ordered that respondent's motion requesting that the proceedings in this matter be conducted in person is granted.