Opinion
5128 [5514] Index 250243/16 OP 126/17
12-05-2017
In re ALBERT C., Petitioner, v. Hon. Michael A. GROSS, etc., Respondent.
Marvin Bernstein, Mental Hygiene Legal Service, New York (Diane G. Temkin of counsel), for petitioner.
Marvin Bernstein, Mental Hygiene Legal Service, New York (Diane G. Temkin of counsel), for petitioner.
Gische, J.P., Kapnick, Oing, Moulton, JJ.
The CPLR article 78 application seeking relief in the nature of a writ of mandamus is denied and the proceeding dismissed, without costs.
Pursuant to Mental Hygiene Law § 10.07(a), a trial shall be commenced within 60 days of the court's probable cause determination. However, this deadline is not strictly construed (Matter ofState of New York v. Keith F., 149 A.D.3d 671, 53 N.Y.S.3d 55 [1st Dept. 2017], lv denied 29 N.Y.3d 917, 64 N.Y.S.3d 667, 86 N.E.3d 559 [2017] ). The State's failure to comply with the deadline does not affect the validity of the article 10 petition or actions subject to deadlines (id.; see also Matter ofGrossman v. Rankin, 43 N.Y.2d 493, 501, 402 N.Y.S.2d 373, 373 N.E.2d 267 [1977] ). The 32–day delay of trial did not otherwise violate petitioner's due process rights where it was done to accommodate a family medical emergency of a crucial expert witness. Accordingly we deny a writ of mandamus compelling the respondent to restore the jury trial.
Justice Michael A. Gross has elected, pursuant to CPLR 7804(i), not to appear in this proceeding.