In Matter of the State of New York, Appellant, v. Richard L., Respondent

In Matter of the State of New York, Appellant, v Richard L., Respondent. [38 NYS3d 801] [MAJORITY] Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about January 15, 2015, which granted respondent’s motion to dismiss the petition for the civil management of respondent pursuant to article 10 of the Mental Hygiene Law, unanimously reversed, on the law, without costs, the motion denied, the petition reinstated, and the matter remanded for a probable cause hearing. Supreme Court, relying on Matter of State of New York v Donald DD. (24 NY3d 174 [2014]), found that petitioner failed to state a cause of action. However, based on the subsequent decisions in Matter of State of New York v Dennis K. (27 NY3d 718 [2016]) and Matter of State of New York v Jerome A. (137 AD3d 557 [1st Dept 2016]), the petition alleging a mental abnormality based on a composite diagnosis of antisocial personality disorder, substance-use disorders, psychopathy and sexual preoccupation, and supported by expert evidence that is not patently deficient, is facially valid and not subject to dismissal prior to a probable cause hearing. Although the court at a probable pause hearing or the factfinder at trial may or may not be convinced by the expert evidence, the evidence was not so deficient as to warrant dismissal of the petition at this early juncture. Concur — Friedman, J.R, Richter, Feinman, Kapnick and Kahn, JJ.