| Matter of Albert C. v Gross |
| 2017 NY Slip Op 08479 |
| Decided on December 5, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 5, 2017
Gische, J.P., Kapnick, Oing, Moulton, JJ.
5128 250243/16 [5514] 126/17
v
Michael A. Gross, etc., Respondent.
Marvin Bernstein, Mental Hygiene Legal Service, New York (Diane G. Temkin of counsel), for petitioner.
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 of State of New York v Keith F., 149 AD3d 671 [1st Dept 2017], lv denied 29 NY3d 917 [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 of Grossman v Rankin, 43 NY2d 493, 501 [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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 5, 2017
CLERK