Opinion
518590.
04-30-2015
In the Matter of STATE of New York, Respondent, v. RICHARD TT., Appellant.
Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
DEVINE, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered January 8, 2014 in Warren County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 10, to find respondent to be a dangerous sex offender and confined him to a secure treatment facility.
Respondent has a history of sexually inappropriate behavior and, in 2007, he pleaded guilty to one count of rape in the third degree in satisfaction of various pending charges. He was incarcerated and, as his release from prison neared, petitioner commenced this proceeding seeking a determination that respondent is a dangerous sex offender requiring civil confinement (see Mental Hygiene Law § 10.06[a] ). Respondent waived his right to a jury trial and, following a bench trial, Supreme Court determined that he was a detained sex offender suffering from a mental abnormality (see Mental Hygiene Law § 10.07 [a] ). After the dispositional phase of trial, Supreme Court adjudicated respondent to be a dangerous sex offender requiring confinement (see Mental Hygiene Law § 10.07[f] ). Respondent appeals.
Subsequent to the issuance of the appealed-from order, the Court of Appeals held that a diagnosis of antisocial personality disorder “has so little relevance to the controlling legal criteria of Mental Hygiene Law § 10.03(i) that it cannot be relied upon to show mental abnormality for [Mental Hygiene Law] article 10 purposes” (Matter of State of New York v. Donald DD., 24 N.Y.3d 174, 190, 996 N.Y.S.2d 610, 21 N.E.3d 239 [2014] ). Respondent suffers from antisocial personality disorder, among other things, and moved to vacate the appealed-from order in the wake of that pronouncement. Shortly before this appeal was argued, Supreme Court granted the motion.
It is well settled that “[n]o appeal lies from a vacated judgment or order” (Matter of Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor, 219 A.D.2d 883, 883, 632 N.Y.S.2d 53 [1995] ; see Duryea v. Fuechsel, 145 N.Y. 654, 657–658, 40 N.E. 204 [1895] ; Scally v. Scally, 151 A.D.2d 869, 871, 542 N.Y.S.2d 844 [1989] ). Respondent does not assert that Supreme Court lacked the authority to vacate its prior order, but argues that this appeal remains viable because petitioner may take an appeal from the vacatur order or move to renew and/or reargue. Petitioner, in fact, has appealed the vacatur order and obtained a stay pending appeal. The appeal does not affect the finality or enforceability of the vacatur order (see Da Silva v. Musso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109, 559 N.E.2d 1268 [1990] ; Samhammer v. Home Mut. Ins. Co. of Binghamton, 120 A.D.2d 59, 63, 507 N.Y.S.2d 499 [1986] ), however, and a grant of reargument or renewal would itself be appealable (see CPLR 5701[a][2][viii] ). Indeed, even the stay pending appeal of the vacatur order does not “suspend the operation of the order ... and restore the case to the status which existed before it was issued” (Matter of Pokoik v. Department of Health Servs. of County of Suffolk, 220 A.D.2d 13, 15, 641 N.Y.S.2d 881 [1996] ; see Baker v. Board of Educ. of W. Irondequoit School Dist., 152 A.D.2d 1014, 1014, 544 N.Y.S.2d 258 [1989] ). While we appreciate respondent's desire to bring the proceedings in this case to a definitive conclusion, the present appeal has been taken from a vacated order and must be dismissed (see Matter of Feustel v. Rosenblum, 6 N.Y.3d 885, 886, 817 N.Y.S.2d 211, 850 N.E.2d 25 [2006] ; Matter of Rodriguez v. Johnson, 45 A.D.3d 279, 279, 843 N.Y.S.2d 832 [2007], lv. denied 10 N.Y.3d 705, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008] ).
ORDERED that the appeal is dismissed, as moot, without costs.
McCARTHY, J.P., EGAN JR. and CLARK, JJ., concur.