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IN DENYING THE STATE POLICE’S REQUEST FOR AN EXTREME RISK PROTECTION ORDER (ERPO) AGAINST THE 18-YEAR-OLD RESPONDENT, THE JUDGE FOCUSED ON THE ABSENCE OF EVIDENCE RESPONDENT HAD ACCESS TO FIREARMS TO THE EXCLUSION OF EVIDENCE RESPONDENT POSED A RISK OF SERIOUS HARM TO HIMSELF OR OTHERS; NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, reversing Supreme Court and remitting the matter for a new hearing, determined the judge hearing the State Police’s application for an “extreme risk protection order (ERPO) against the 18-year-old respondent did not apply the correct criteria in denying the request. Supreme Court erroneously focused on the lack of evidence the respondent had access to a firearm to the exclusion of evidence respondent posed a risk of serious harm to himself or others:

… CPLR article 63-A establishes a procedure by which a court may temporarily restrict a person’s access to firearms where that person has been judicially determined to pose a risk of serious harm to themself or others (see CPLR 6340 [1]; 6342, 6343). The purpose of the statutory scheme is “to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others” … . Upon application, the court may first issue a temporary ERPO upon a finding of probable cause to believe that “the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others” (CPLR 6342 [1]). Where, as here, a temporary ERPO is denied, the court must nevertheless conduct a hearing on the application for a final ERPO (see CPLR 6342 [5]). At that hearing, the petitioner bears the burden to establish, by clear and convincing evidence, “that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others,” as defined in Mental Hygiene Law § 9.39 (a) (CPLR 6343 [2]). 

In making that determination, the court must consider the eight factors enumerated in CPLR 6342 (2), together with any other relevant circumstances (see CPLR 6343 [2] …). The statutory factors include, among other things, acts of the respondent involving “a threat or act of violence or use of physical force directed toward self, the petitioner, or another person” (CPLR 6342 [2] [a]). Significantly, only three of the eight enumerated factors expressly concern a weapon or firearm (see CPLR 6342 [2] [c], [d], [g]). Thus, nothing in the statutory framework requires proof that the threatened or anticipated physical harm will be accomplished with a firearm, nor does it make a respondent’s existing possession of or access to a firearm a prerequisite to issuance of an ERPO. Indeed, the Legislature’s express reference to firearms in certain statutory factors, while omitting any such limitation from the governing likelihood-of-serious-harm standard and the general threat-of-violence factor, demonstrates that no such additional requirement may properly be engrafted onto the statute … .

The record reflects that Supreme Court nevertheless imposed such a requirement. Matter of New York State Police v Owen WW., 2026 NY Slip Op 05452, Third Dept 9-24-26

Practice Point: Consult this decision for insight into the procedure and criteria for determining an application for an extreme risk protection order (ERPO).

 

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NEW YORK STATE OFFICE OF MENTAL HEALTH (OMH) WAS PROPERLY HELD IN CONTEMPT AND FINED $100-A-DAY FOR THE DELAY IN TRANSFERRING THE MENTALLY ILL DEFENDANT FROM RIKERS ISLAND TO A SECURE PSYCHIATRIC FACILITY (FIRST DEPT).

The First Department determined the New York State Office of Mental Health (OMH) was properly held in contempt based on a delay in transferring the mentally ill defendant from Rikers Island to a secure psychiatric facility. $100-a-day damages were assessed:

Defendant was charged with assault in the second degree based on the complaint that he pushed his mother to the ground causing her to twist and injure her toe. He was remanded to the custody of the Department of Corrections and held at Rikers Island. The charge was later elevated from a misdemeanor to a felony based on his mother’s age. After defendant was evaluated for competency a second time in January 2025, both evaluators concluded that defendant was unfit to proceed. Supreme Court agreed, and on February 24, 2025, it ordered defendant remanded to the custody of OMH for restorative treatment. The order of commitment required that the defendant “be transferred into the custody of the Office of Mental Health no later than March 24, 2025” and warned that a failure to do so would result in a finding of contempt. It is uncontested that the transfer was delayed until July 25, 2025. * * *

OMH argues that defendant failed to prove that OMH’s delay caused his mental health to deteriorate. However, the relevant issue is not whether defendant deteriorated while he was in custody but whether OMH provided the requisite restorative care. In any event, Supreme Court was entitled to credit Dr. Goldsmith’s testimony that defendant’s condition did deteriorate at Rikers. OMH’s attempt to blame defendant for his loss because he is mentally ill and refuses treatment is risible. The purpose of a transfer to a secure psychiatric facility is so that a mentally ill defendant can receive statutorily mandated restorative care and treatment. To attribute defendant’s loss or injury to defendant’s preexisting mental illness, which causes defendant to refuse treatment, turns Criminal Procedure Law article 730 on its head. People v G.O., 2026 NY Slip Op 05242, First Dept 9-10-26

 

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PETITIONER, THE GUARDIAN OF THE PERSON AND PROPERTY OF AN INCAPACITATED PERSON SINCE 2012, WAS ASKED TO RECERTIFY THE GUARDIANSHIP BY A NEW BANK WHICH TOOK OVER THE ACCOUNTS; PETITIONER SOUGHT TO CONTINUE THE TERMS OF THE 2012 ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, MODIFIED THE TERMS OF THE ORIGINAL ORDER ABSENT A REQUEST FROM A PARTY TO DO SO (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the justice presiding over this guardianship proceeding should not have “sua sponte” changed the terms of the existing guardianship absent a request from a party to do so. The appellate courts do not like “sua sponte” rulings. The petitioner was appointed guardian of the person and property of an incapacitated person in 2012. This proceeding was prompted by a new bank which took over the incapacitated person’s accounts and requested that petitioner “recertify” his guardianship status. Petitioner brought this proceeding to continue the terms of the original 2012 order:

… [P]etitioner [the contends that Supreme Court erred in modifying the terms of the guardianship. We find this contention to have merit. As petitioner was appointed guardian in 2012, there was no basis to appoint a temporary guardian (see Mental Hygiene Law § 81.23 [a]). Nor was there a basis to remove the guardian (see Mental Hygiene Law § 81.35). Although a court may terminate or modify a guardian’s powers upon a showing that, “for some other reason, . . . the guardian is no longer necessary . . . or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person” (Mental Hygiene Law § 81.36 [a] [4]), such application cannot be made sua sponte, but must “be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article” (Mental Hygiene Law § 81.36 [b] …). Nevertheless, when authorizing the powers that may be exercised by a guardian of the property, courts are to employ “the least restrictive form of intervention,” taking into consideration, among other things, the incapacitated “person’s wishes, preferences, and desires with regard to managing the activities of daily living” (Mental Hygiene Law § 81.21 [a]).

Here, there was no request before Supreme Court to modify the terms of the guardianship, as petitioner moved to continue the same terms of the original order to satisfy the requests of the new banking institution — specifically, petitioner’s access to “all bank accounts, annuity payments, entitlements and other financial resources in [respondent’s] possession or payable to her.” However, the order issued by Supreme Court failed to contain this language and otherwise did not conform to the requirements of the statute (see Mental Hygiene Law §§ 81.15 [c]; 81.16). To the extent that this order is further interpreted as increasing the powers of the guardian by requiring petitioner to now pay certain monthly expenses that respondent already successfully handles on her own, we agree with petitioner that the record does not support this change as being the least restrictive form of intervention (see Mental Hygiene Law § 81.21 [a]). Accordingly, this portion of Supreme Court’s order must be reversed and vacated. Matter of Karissa W., 2026 NY Slip Op 03490, Third Dept 6-4-26

Practice Point: The decision illustrates the appellate courts’ disapproval of sua sponte rulings, i.e,, rulings which are not precipitated by a party’s motion.

 

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MOTHER STABBED HER TWO CHILDREN AND FILED AN INTENT TO PRESENT A PSYCHIATRIC DEFENSE IN THE CRIMINAL TRIAL; THE SURVIVING DAUGHTER AND FATHER SUED DEFENDANT HOSPITAL ALLEGING MOTHER WAS NEGLIGENTLY TREATED SHORTLY BEFORE THE STABBING; MOTHER WAIVED THE PHYSICIAN-PATIENT AND RELATED PRIVILEGES BY FILING THE NOTICE OF INTENT TO PRESENT A PSYCHIATRIC DEFENSE; PLAINTIFFS WERE ENTITLED TO DISCOVERY OF MOTHER’S MEDICAL RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined non-party mother had waived the physician-patient and related privileges by filing a Criminal Procedure Law (CPL) section 250.10 notice of intent to present a psychiatric defense in the prior criminal trial. Mother had stabbed her two children. The instant personal injury action is brought by the surviving child and her father alleging mother was negligently treated by defendant hospital shortly before the stabbing. The plaintiffs sought discovery of mother’s medical records:

Generally, medical records are protected from disclosure (see CPLR 4504 [physician-patient privilege]; 4507 [psychologist-patient privilege]; Mental Hygiene Law § 33.13[c] [privilege for patient information reported to the Office of Mental Health or the Office for People with Developmental Disabilities]). However, a patient can waive those privileges “either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue” … . However, simply denying the allegations in a complaint does not constitute such a waiver … . * * *

… [W]aiver of the physician-patient and related privileges in a criminal action generally carries over to a subsequent civil action, provided the defendant’s mental condition remains at issue … . * * *

We are of the view that … the filing of a CPL 250.10 notice of intent to present a psychiatric defense in the criminal case was sufficient to demonstrate that [mother]  placed her mental condition at issue so as to waive her privilege to confidentiality of her medical, psychiatric, and mental health records maintained by [defendant]. . S.M. v City of New York, 2026 NY Slip Op 03248, First Dept 5-21-26

Practice Point: Filing a notice of intent to present a psychiatric defense in a criminal trial waives the physician-patient and related privileges and the waiver carries over to a subsequent related civil action.

 

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UPON THE PRIOR APPEAL, THE SECOND DEPARTMENT MADE A FINDING THAT RESPONDENT SUFFERED FROM SEXUAL SADISM DISORDER AND REMITTED THE MATTER; SUPREME COURT IGNORED THE FINDING AND HELD A NEW NONJURY TRIAL ON ALL ISSUES; SUPREME COURT DID NOT HAVE THE AUTHORITY TO IGNORE THE SECOND DEPARTMENT’S MANDATE (SECOND DEPT).​

The Second Department, reversing Supreme Court, determined Supreme Court improperly ignored the terms of the Second Department’s remittitur. On the prior appeal, the Second Department held that the petitioner had proven respondent suffered from sexual sadism disorder. On remittal, however, Supreme Court held a new nonjury trial on all issues, including whether respondent suffered from sexual sadism disorder:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” … . Therefore, “an order or judgment entered on remittitur ‘must conform strictly to the remittitur'” … .

Here, as the determination of this Court in the January 2024 order is binding upon the Supreme Court … , the Supreme Court erred in, sua sponte, holding a nonjury trial on all issues and redetermining issues already determined by this Court … . Accordingly, the first May 2025 order must be reversed, and we remit the matter again to the Supreme Court, Kings County, for a new trial and determination as to whether the respondent’s diagnoses of ASPD, psychopathy, and sexual sadism disorder are sufficient to find that the respondent suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) … , and a dispositional hearing, if appropriate … . Matter of State of New York v Ezikiel R., 2026 NY Slip Op 02987, Second Dept 5-13-26

Practice Point: A trial court cannot deviate from the mandate of a higher court. Here the appellate court’s finding was ignored by Supreme Court upon remittal, requiring reversal and another remittal.

 

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THE GUARDIAN’S ILLNESS PRECIPITATED THE PETITION TO REMOVE HER; UPON HER RECOVERY THERE WAS NO JUST CAUSE FOR HER REMOVAL; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not support the removal of the incapacitated person’s (Frank’s) wife, Zita, as the guardian of the person and property of Frank. The removal petition, brought by Frank’s daughter, Tara, was dismissed:

In December 2022, the wife was temporarily hospitalized, which precipitated the petition … to remove her as guardian of the person and property of the incapacitated person. …

The determination “to remove a guardian of the person and property of an incapacitated person pursuant to the Mental Hygiene Law is addressed to the sound discretion of the Supreme Court” … . The “overarching concern remains the best interest of the incapacitated person” … . “A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … .

Here, the Supreme Court improvidently exercised its discretion in removing the wife as guardian of the person and property of the incapacitated person (see Mental Hygiene Law § 81.35). The wife’s temporary medical crisis that had precipitated the petition was resolved, and the petitioner failed to demonstrate that any of the wife’s actions regarding the incapacitated person’s care were a just cause for removal … . Matter of Frank M. (Zita C.–Tara M. M.), 2026 NY Slip Op 02116, Second Dept 4-8-26

Practice Point: Other than the guardian’s illness, there was no support for her removal as guardian. Her recovery, therefore, warranted dismissal of the removal petition.

 

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PURSUANT TO THE MENTAL HYGIENE LAW, THE JUDGE DID NOT HAVE THE AUTHORITY TO INVALIDATE THE INCAPACITATED PERSON’S WILL IN THIS GUARDIANSHIP PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this guardianship proceeding pursuant to the Mental Hygiene Law did not have the authority to invalidate the incapacitated person’s will:

… [T]he court ,,, adjudged Vincent V. L. to be an incapacitated person within the meaning of Mental Hygiene Law article 81 and appointed an independent guardian for his person and property. At issue on this appeal … is whether the court properly directed, in the context of this Mental Hygiene Law article 81 proceeding, that the last will and testament of Vincent V. L. … , was void ab initio.

Mental Hygiene Law § 81.29(d) expressly provides, in relevant part, that “[t]he court shall not . . . invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person” in the context of a Mental Hygiene Law article 81 proceeding. The Supreme Court thus did not have the authority to invalidate Vincent V. L.’s last will and testament in the context of this Mental Hygiene Law article 81 proceeding. Matter of Vincent V.L. (Matthew L.–Tomasine F.), 2026 NY Slip Op 01789, Second Dept 3-25-26

Practice Point: The Mental Hygiene Law prohibits the invalidation of an incapacitated person’s will in a guardianship proceeding.

 

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A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

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RESPONDENT THREATENED SELF HARM AND WAS TAKEN INTO CUSTODY PURSUANT TO THE MENTAL HYGIENE LAW; THE JUDGE DECLINED TO ISSUE A TEMPORARY “EXTREME RISK PROTECTION ORDER” (ERPO) AND SET THE MATTER DOWN FOR A HEARING; SUBSEQUENTLY THE JUDGE, SUA SPONTE, CANCELED THE HEARING AND DISMISSED THE PETITION, ACTIONS FOR WHICH THE JUDGE HAD NO AUTHORITY; MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge, who had declined to issue a temporary “extreme risk protection order” (ERPO) for respondent and had set the matter down for a hearing, did not have the authority to, sua sponte, cancel the hearing and dismiss the petition. After respondent had threatened self harm he was taken into custody pursuant to the Mental Hygiene Law:

… [O]ne day prior to the scheduled hearing, Supreme Court, sua sponte, issued a decision canceling the hearing and dismissing the petition. As grounds for the dismissal, the court found that dismissal best served the interest of preserving judicial and law enforcement resources given respondent’s inability to purchase a firearm due to the arrest pursuant to Mental Hygiene Law § 9.41, purported hospital admission pursuant to Mental Hygiene Law § 9.39 (a) and the lack of any indication that respondent owned any firearms in New York at the time of the proceeding. …

To begin, as the order on appeal was issued on a sua sponte basis, no appeal lies as of right (see CPLR 5701 [a] [2]). Nevertheless, “we treat the notice of appeal as a request for permission to appeal and grant the request” … .

… Supreme Court’s sua sponte order dismissing the petition must be reversed. “[S]ua sponte dismissals are to be used sparingly and only when extraordinary circumstances exist to warrant them” … . Here, there is no indication that such extraordinary circumstances exist. The grounds relied upon by Supreme Court — that the relief that would be provided by an ERPO was “duplicative and an inefficient use of judicial and law enforcement resources” — to the extent that they could constitute meritorious grounds for dismissal, require that petitioner be given the opportunity to respond and object … . Moreover, CPLR 6343 (1) clearly mandates that if a temporary ERPO is denied, such as occurred here, the court hold a hearing, no later than 10 business days after the application for the ERPO is served on the respondent, to determine whether an ERPO should be issued. Supreme Court’s sua sponte dismissal on grounds that are entirely absent from the statute was improper, and we therefore reverse and remit to conduct a hearing as required. Matter of Hogencamp v Matthew KK., 2025 NY Slip Op 06106, Third Dept 11-6-25

Practice Point: Sua sponte orders are not appealable as of right. Permission to appeal must be requested.​

Practice Point: Here the respondent threatened self harm and was taken into custody pursuant to the Mental Hygiene Law. A judge’s authority is constrained by the Mental Hygiene Law. Once an “extreme risk protection order” (ERPO) is denied by the judge and the matter is set down for a hearing, the judge cannot, sua sponte, cancel the hearing and deny the petition for reasons not prescribed in the Mental Hygiene Law.

 

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THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the drug-possession indictment, determined the police officer’s search of defendant’s pocket while he was unconscious was not a valid search incident to arrest a was not justified under the Mental Hygiene Law. The police entered the apartment with the tenant’s permission to search for a person for whom they had an arrest warrant. The tenant told the police the defendant had the same first name as the name on the warrant but that defendant was not the person they were looking for. Defendant was sitting at the kitchen table either unconscious or asleep. When the police officer couldn’t wake the defendant up, the officer searched his pockets and found cocaine:

The officers called an ambulance for defendant, but when the ambulance arrived, the medical personnel were able to wake defendant and determined that he did not need medical care. During his testimony at the suppression hearing, the officer asserted that Mental Hygiene Law § 22.09 permitted him to search defendant inasmuch as he was planning to call an ambulance to transport defendant. The suppression court determined that the officer’s search of defendant’s person was justified by Mental Hygiene Law § 22.09 and that the search was analogous to a search incident to arrest.

… The People correctly concede that the officer did not believe that defendant had committed a crime before he searched defendant’s pockets, and thus the search was not conducted incident to a lawful arrest … . … [W]e cannot conclude that the police officer was acting pursuant to Mental Hygiene Law § 22.09 because, contrary to the People’s assertion, there was insufficient evidence that defendant was in danger of harming himself or others … . People v Ruise, 2025 NY Slip Op 05589, Fourth Dept 10-10-25

Practice Point: For a warrantless search of a person to be justified under the Mental Hygiene Law there must be evidence the defendant is in danger of harming himself or others.

 

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