Opinion
July 13, 1998
Appeal from the Supreme Court, Westchester County (DiBlasi, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Following a hearing held in an earlier proceeding commenced pursuant to the Mental Hygiene Law, the appellant was found to be mentally ill and a retention order was issued by the Supreme Court, Westchester County, dated January 27, 1995. A valid, binding, and enforceable court order obtained and issued in accordance with the Mental Hygiene Law precludes the relitigation of the issues determined therein in a later action to recover damages ( see, Kulak v. City of New York, 88 F.3d 63; Warner v. State of New York, 297 N.Y. 395; Rosario v. State of New York, 33 A.D.2d 122, affd 36 N.Y.2d 901). Accordingly, the Supreme Court properly found that the appellant was collaterally estopped from relitigating the question of his mental condition.
Furthermore, the court properly determined that the appellant failed to adequately establish the existence of a meritorious claim. A confinement pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice ( see, Ferretti v. Town of Greenburgh, 191 A.D.2d 608). Here, the issue of the appellant's confinement was adjudicated at a hearing held in the prior proceeding, at which time it was determined that he was suffering from mental illness which required confinement. Thus, there being no malpractice on the part of the defendants, their confinement of the appellant pursuant to Mental Hygiene Law article 9 was privileged. Accordingly, summary judgment dismissing the complaint was properly granted.
The appellant's remaining contentions are without merit.
Sullivan, J. P., Joy, Krausman and Florio, JJ., concur.