Matter of Norman D. v Wood

Matter of Norman D. v Wood 2014 NY Slip Op 08017 Decided on November 19, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.
2011-11138 ON MOTION

[*1]In the Matter of Norman D. (Anonymous), petitioner,

v

Charles D. Wood, etc., et al., respondents.

DECISION & ORDER

Motion by the respondents to recall and vacate a decision and judgment of this Court dated December 26, 2012, which granted a petition pursuant to CPLR article 78 in the nature of prohibition, and to deny the petition and dismiss the proceeding.

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

ORDERED that the motion is granted, the decision and judgment of this Court dated December 26, 2012, is recalled and vacated, and the following decision and judgment is substituted therefor:

Mental Hygiene Legal Service, Mineola, N.Y. (Michael D. Neville and Dennis B. Feld of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Rachel C. Anello of counsel), for respondent Michael F. Hogan.

Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition, in effect, to prohibit enforcement of a provision of an amended order of conditions dated August 2, 2011, issued by the respondent Charles D. Wood, a Justice of the Supreme Court, Dutchess County, which directed that, should the petitioner fail to comply with any of the other conditions imposed in that amended order of conditions "and refuse to appear for or comply with a psychiatric examination," the Commissioner of the New York State Office of Mental Health "shall apply to the court for a Temporary Confinement Order for the purpose of conducting an effective psychiatric examination in a secure facility."

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

For the reasons stated by the Court of Appeals in Matter of Allen B. v Sproat (23 NY3d 364), prohibition does not lie in this case.

MASTRO, J.P., RIVERA, AUSTIN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court