State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 30, 2015 518590
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In the Matter of STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
RICHARD TT.,
Appellant.
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Calendar Date: March 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
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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.
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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
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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 NY3d 174, 190 [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 AD2d 883, 883 [1995]; see Duryea v
Fueschel, 145 NY 654, 657-658 [1895]; Scally v Scally, 151 AD2d
869, 871 [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
NY2d 436, 440 [1990]; Samhammer v Home Mut. Ins. Co. of
Binghamton, 120 AD2d 59, 63 [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 AD2d 13, 15 [1996]; see Baker v Board of
Educ. of W. Irondequoit School Dist., 152 AD2d 1014, 1014
[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
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(see Matter of Feustel v Rosenblum, 6 NY3d 885, 886 [2006];
Matter of Rodriguez v Johnson, 45 AD3d 279, 279 [2007], lv
denied 10 NY3d 705 [2008]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court