Opinion
224-2008.
Decided July 10, 2008.
The State of New York (the "State") has filed a petition seeking a judgment that respondent is a sex offender requiring civil management pursuant to Article 10 of the Mental Hygiene Law ("MHL"). Respondent has moved to dismiss the petition pursuant to CPLR 3211. For the reasons set forth below, the motion to dismiss is granted, without prejudice.
In 2004, respondent was convicted of Attempted Sexual Abuse in the First Degree and sentenced to a term of imprisonment of from two to four years. On September 19, 2006, respondent was transferred from prison to the Central New York Psychiatric Center ("CNYPC") pursuant to Correction Law Section 402. See Affirmation of Kimberly Tate-Brown, Esq., dated June 2, 2008 ("Tate-Brown Aff.") at ¶¶ 3-4.
On April 19, 2007, the day before his prison sentence was due to expire, the State filed a petition in Supreme Court, Oneida County, seeking a judgment that respondent is a sex offender requiring civil management pursuant to MHL Article 10 (the "Oneida Petition"). After his prison term expired, respondent remained at CNYPC pursuant to Correction Law Section 404 and MHL Article 9. See Tate-Brown Aff. at ¶ 4. On September 10, 2007, CNYPC applied to have respondent involuntarily confined to Bronx Psychiatric Center ("BPC") pursuant to MHL Section 9.27. Id. at ¶ 5. On October 2, 2007, the Supreme Court in Oneida County held a hearing pursuant to MHL Section 9.27, issued an order of involuntary retention against respondent, and directed his transfer to BPC on the grounds that he was mentally ill and unable to care for himself. See Affirmation of Assistant Attorney General Shelley A. Forde dated June 10, 2008 (the "Forde Aff.") at ¶ 4; Tate-Brown Aff. at Exhibit C.
After the hearing, the following colloquy took place in Supreme Court, Oneida County before Justice Siegel:
THE COURT: Okay. That concludes the retention hearing. Now, Mr. Seeman [the Assistant Attorney General], do you wish to make a motion?
MR. SEEMAN: Yes, Your Honor. At this time, based upon the fact that Mr. Johnson has been ordered involuntarily retained . . . we would actually move to withdraw the Article 10 proceedings and have those proceedings dismissed by the Court without prejudice. And if the Court is agreeable to that and needs a formal written order, we will prepare that for Your Honor's signing.
THE COURT: Well, I'm going to need an order.
***
THE COURT: I'm not going to require you to make a formal motion. I will allow you to make the motion orally at this point. You have no objection to that motion, do you, Ms. Frank [respondent's attorney from Mental Hygiene Legal Service]?
MS. FRANK: I have no objection to the withdrawal of the Article 10 petition, Your Honor.
***
THE COURT: Okay. I will grant your motion and I will allow you to withdraw the Article 10 proceeding which has been commenced. I will allow you to withdraw it without prejudice to be renewed at a subsequent time if you feel it's appropriate.
Forde Aff. Exhibit A at pp. 2-3 (emphasis added).
It appears that no order was ever submitted to the Court to dismiss the Oneida Petition without prejudice. See Reply Affirmation of Kimberly Tate-Brown, Esq. dated June 13, 2008 at ¶ 2. Rather, the attorneys for petitioner and respondent entered into a stipulation of discontinuance dated October 2, 2007 (the "Stipulation"), which provides in relevant part that "the above-entitled action be, and the same is hereby withdrawn and discontinued with prejudice. . . ." Tate-Brown Aff. Exhibit D (emphasis added). The Stipulation was also signed by respondent's guardian ad litem, who had been appointed in connection with the MHL Article 9 proceeding. Id. The Stipulation was filed with the Court on October 11, 2007. Id.
On May 20, 2008, the day respondent's post-release supervision was due to expire, the State filed this Article 10 proceeding in Bronx County, based upon respondent's location at BPC (the "Bronx Petition"). The Bronx Petition and the Oneida Petition seek substantially the same relief, namely, a judgment that respondent is a sex offender requiring civil management pursuant to Article 10. Both Petitions allege that respondent is a sex offender due to his conviction for Attempted Sexual Abuse in the First Degree, and both allege the same mental abnormality, schizophrenia, that requires civil management. Compare Bronx Petition ¶¶ 15-16, 20-24, 28 with Oneida Petition ¶¶ 2, 6-11, 15; see O'Brien v. City of Syracuse, 54 NY2d 353, 357-58 (1981).
Respondent claims the Bronx Petition must be dismissed because of the Stipulation. The Court is constrained to agree. It is well-settled that "[s]tipulations of settlement are favored by the courts and not lightly cast aside." Matter of Hofmann, 287 AD2d 119, 121 (1st Dept. 1999) (citation omitted). It is also true that "a stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits." Schwartzreich v. E.P.C. Carting Co., 246 AD2d 439, 441 (1st Dept. 1998) (citation omitted); see also Mazza v. New York City Police Dept., 6 AD3d 186, 187 (1st Dept. 2004). Generally speaking, a stipulation will not be set aside "without a showing of good cause therefor, such as fraud, collusion, mistake, accident, or some other ground of the same nature." Matter of Frutiger, 29 NY2d 143, 149-150 (1971) (quotations omitted); see, e.g., James v. F.E. Nadal Corp., 290 AD2d 248, 249 (1st Dept. 2002); Prince Fashions, Inc. v. 542 Holding Corp., 15 AD3d 214, 215 (1st Dept. 2005); Structured Asset Sales Group LLC v. Freeman, 45 AD3d 327 (1st Dept. 2007). A "party seeking either to enforce a stipulation or to obtain relief from one may ordinarily proceed either by a motion in the action in which the stipulation was given or by a plenary action based upon the stipulation." 4 Weinstein, Korn Miller, New York Civil Practice: CPLR, ¶ 2104.06 (2d ed. 2004); but see In re Horton, 51 AD2d 856, 857 (4th Dept. 1976) (finding Surrogate's Court could properly disregard stipulation of discontinuance "on the merits" that was entered in Supreme Court to avoid "shunting" the issue back to Supreme Court). It may very well be that the Stipulation was intended to work a dismissal "without prejudice." Indeed, that appears to be the clear import of the remarks made by Justice Siegel. On the other hand, the parties subsequently signed and filed the Stipulation, which expressly stated that the dismissal was "with prejudice." If that is a mistake or typographical error, it is one that should be rectified upon a proper application. This Court will not presume to alter the terms of a stipulation entered into before another Court without good cause. The State has not demonstrated that an appropriate application to vacate the Stipulation has been made before the Supreme Court in Oneida County, and has not explained why the State entered into the stipulation of discontinuance "with prejudice" in the first place. Accordingly, the motion to dismiss is granted without prejudice to the State to seek vacatur of the Stipulation in the appropriate forum.
The foregoing constitutes the Decision and Order of the Court.