Supreme Court, New York County, October 20, 2025

OPINION OF THE COURT

Ta-Tanisha D. James, J.

On October 14, 2024, petitioner K.C. timely filed a petition and order to show cause seeking a review and rehearing of the one-year order of assisted outpatient treatment (AOT) previously issued against him. This application was made pursuant {**88 Misc 3d at 709}to Mental Hygiene Law § 9.35, which grants an individual subject to an involuntary retention or assisted outpatient treatment order the statutory right to a de novo proceeding before a jury or a different jurist. The sole requirement for exercising this right is the timely filing of the petition within 30 days of the issuance of the underlying order. (See Mental Hygiene Law §§ 9.35, 9.60 [m].)

The matter was argued before this court on October 6, 2025. Petitioner Mr. C. appeared and elected to proceed pro se,^FN2 while the respondent, the New York City Department of Health and Mental Hygiene (the City), was represented by an attorney from its Office of General [*2]Counsel. As a petition for a review and rehearing under Mental Hygiene Law § 9.35 constitutes a de novo proceeding, this court is not limited by or bound to any record made in the prior proceeding. (See Matter of Maureen A. v Wack, 153 Misc 2d 600, 603 [Sup Ct, NY County 1991].)

Facts

On September 10, 2024, Elmira Correctional Facility (Elmira) through its superintendent, Kevin McCarthy, filed an order to show cause requesting a one-year AOT term for K.C. who had been receiving mental health treatment at Elmira. On September 17, 2024, the Honorable Christopher P. Baker of Chemung County granted the application. Mr. C. was released from Elmira on September 18, 2024, and immediately began residing in and receiving his court-ordered AOT treatment in New York City.

Mr. C. timely filed the instant order to show cause on October 14, 2024, seeking a review and rehearing of the one-year AOT order issued by Justice Baker. The parties repeatedly consented to the adjournment of the review and rehearing application until February 3, 2025, when the City moved for its dismissal. The City argued that the petition should have been brought against Elmira who was the petitioner on the underlying AOT application or in the alternative that the proper venue was Chemung County where the AOT application was adjudicated on September 17, 2024. On February 7, 2025, Justice W. Franc {**88 Misc 3d at 710}Perry denied the City's motion determining that the Mental Hygiene Law § 9.35 petition was in the proper venue where Mr. C. had been receiving treatment for approximately five months at the time the change of venue was sought and that the City, which oversaw such court-ordered treatment, was the appropriate respondent.

Mr. C. subsequently filed a pro se motion in Chemung County to vacate his AOT order pursuant to Mental Hygiene Law § 9.60 (l) (1) arguing that the superintendent of a correctional facility is not a proper statutory applicant for an AOT order. The motion to vacate was argued on August 15, 2025, and Justice Baker denied the motion on August 18, 2025, finding that the superintendent of a correctional facility can petition a court for an AOT order.

Thereafter, this application for a review and rehearing was continuously adjourned by the parties, until it was heard by the court on September 8, 2025, where Mr. C. again represented himself. On September 11, 2025, the Honorable Melissa Crane issued an order recusing herself due to Mr. C.'s repeated and unsolicited communication attempts after the record was closed and despite being instructed to refrain from such attempted ex parte communication. This matter was subsequently re-calendared for October 6, 2025, when oral argument was heard by this court. At this point, Mr. C.'s underlying AOT order expired on September 17, 2025, and he is not currently subject to AOT oversight or mandated treatment.

Findings

The Mental Hygiene Law provides for court-ordered outpatient treatment, commonly known as assisted outpatient treatment (AOT), codified under Mental Hygiene Law § 9.60. New York State instituted its AOT program in 1999—referred to as Kendra's Law—in response to the tragic death of Kendra Webdale, who was fatally pushed onto subway tracks by an individual suffering from untreated mental illness. (Matter of K.L., 1 NY3d 362, 366 [2004].) The statute aims to provide mandated supervision and treatment for "psychiatric patients [who are] unlikely to survive safely in the community without supervision," allowing them to "avoid hospitalization by complying with court-ordered mental health treatment." (Id.)

Mental Hygiene Law § 9.60 sets forth the criteria and procedure for both initial and renewal AOT applications, as well as the administration of assisted outpatient treatment and accompanying [*3]{**88 Misc 3d at 711}mental health services. In this matter, Kevin McCarthy, Superintendent of Elmira Correctional Facility, pursued AOT for Mr. C. pursuant to Mental Hygiene Law § 9.60 (e) (1) on Mr. C.'s now expired AOT order.

Mr. C. argues that his expired AOT order should now be deemed void as the statute does not permit a superintendent of a correctional facility to initiate an AOT application.^FN3 Despite the expiration of Mr. C.'s underlying AOT order, both parties denied that this review and rehearing application was moot and asserted that this court should instead adjudicate the matter.

Mental Hygiene Law § 9.60 (e) (1) restricts which persons may apply for AOT providing that "[s]uch petition may be initiated only by the following [listed] persons." One of the listed applicants can be "the director of any public or charitable organization, agency or home providing mental health services to the subject of the petition or in whose institution the subject of the petition resides." (See Mental Hygiene Law § 9.60 [e] [1] [iv].) The City argues that this provision would encompass the superintendent of a correctional facility providing mental health treatment to Mr. C. and the "or in whose institution the subject of the petition resides" clearly covers Mr. C. who was "residing" in the Elmira Correctional Facility.

Mr. C. instead asserts that the term "director" as used in Mental Hygiene Law § 9.60 (e) (1) (iv) shall be limited solely to its statutory definition found in Mental Hygiene Law § 9.60 (a) (2) which defines the term as "the director of community services of a local governmental unit, or the director of a hospital licensed or operated by the office of mental health which operates, directs and supervises an assisted outpatient treatment program."

The court finds that both suggested statutory interpretations asserted by the parties are flawed. Limiting the term "director" in Mental Hygiene Law § 9.60 (e) (1) (iv) to the statutory definition would render the provision meaningless. This is because the director of community services and the director of a hospital {**88 Misc 3d at 712}are already listed separately as potential applicants in Mental Hygiene Law § 9.60 (e) (1) (iii) and (vii). Instead, Mental Hygiene Law § 9.60 (e) (1) (iv) allows for a director of "any public or charitable organization, agency or home providing mental health services" or housing the subject of the petition to apply for assisted outpatient treatment (AOT).

Accordingly, the only interpretation that gives Mental Hygiene Law § 9.60 (e) (1) (iv) any actual utility or meaning is one where the term "director" refers to the head of any public agency or charitable organization that provides mental health treatment or housing to the subject of the AOT application. (See People v Mobil Oil Corp., 48 NY2d 192, 199 [1979] [emphasizing that "a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other"]; see also Matter of Rueda v Charmaine D., 17 NY3d 522 [2011] [adopting the broader reading of a statutory term in the Mental Hygiene Law that better served the statutory purpose].)

The court finds the City's argument—that the superintendent of a correctional facility falls within the statutory definition of "the director of any public or charitable organization, [*4]agency or home providing mental health services"—to be unpersuasive. The statutory reference to "or in whose institution the subject of the petition resides" refers exclusively to the type of facility previously described: an organization, agency, or home providing mental health services. Elmira Correctional Facility is a prison. Its superintendent is not the director of a "public or charitable organization, agency or home." Consequently, the court does not view a correctional facility as a "home" or a place where an individual "resides" for the purposes of this statute. (See Mental Hygiene Law § 9.60 [a] [7]; Correction Law § 2 [4] [a] [defining a correctional facility as "(a)ny place operated by the department and designated by the commissioner as a place for the confinement of persons under sentence of imprisonment"].)

While Mental Hygiene Law § 9.60 (e) (1) (iv) would, for example, provide for the director of the New York State Department of Corrections and Community Supervision (DOCCS), which is a public agency, to serve as an AOT applicant for someone {**88 Misc 3d at 713}in a DOCCS institution^FN4 or the director of a charitable organization running a home where the subject of the petition resides to apply for AOT, the superintendent of a correctional facility is neither the director of a public agency or a charitable institution. As Mr. C. pointed out, there is in fact a bill currently pending in the New York Legislature to amend the Mental Hygiene Law to officially list the superintendent of a correctional facility as one of the potential applicants for AOT and to amend the Correction Law to require a clinical assessment of any incarcerated individual with a serious mental illness, as statutorily defined, to determine whether the individual meets the criteria for AOT, whereas the Correction Law currently only requires such an assessment for psychiatrically hospitalized inmates. (2025 NY Assembly Bill A5538 ["AN ACT to amend the mental hygiene law and the correction law, in relation to enhancing the assisted outpatient treatment program; and to amend Kendra's Law, in relation to making the provisions thereof permanent"].)

Having determined that the Superintendent of Elmira Correctional Facility is not a statutorily listed AOT applicant, the court would ordinarily be required to resolve a crucial legal issue: whether a petition brought by an unauthorized party constitutes a due process violation or merely a ministerial error. (See People ex rel. DeLia v Munsey, 26 NY3d 124, 131 [2015].) Alternatively, the court would consider the petitioner's argument that the unauthorized application entirely deprived the court of subject matter jurisdiction to hear the underlying AOT proceeding. (See Matter of Lopez v Perez, 194 AD2d 467 [1st Dept 1993] [finding a jurisdictional defect when a court application to retain a patient contained paperwork pertaining to a different patient].)

Despite the court's determination, that on the facts of this case, the Superintendent of Elmira was not a statutory applicant, the underlying controversy is now moot. The AOT order contested here has since expired, and Mr. C. is no longer subject to the AOT program or any ongoing judicial oversight. Deciding whether the Superintendent's initiation of the petition was a jurisdictional defect, a due process violation, or a ministerial error would therefore be a purely academic exercise resulting in an impermissible advisory opinion. (See {**88 Misc 3d at 714}Cohen v Anne C., 301 AD2d 446, 447 [1st Dept 2003] [holding that an expired Mental Hygiene Law order renders the matter academic and noting that the exception to the mootness doctrine rarely applies to courts of [*5]original jurisdiction].) The court declines to offer an opinion on the merits of this expired claim.

Conclusion

For the foregoing reasons, the court finds that the underlying AOT petition was brought by an improper applicant and the petitioner's application for a review and rehearing is therefore granted on this issue. However, the petition is otherwise dismissed as moot, as any determination whether the improper applicant resulted in a jurisdictional defect, a due process violation, or simply was a ministerial error would be wholly academic at this juncture.