IN RE: DANIELLE TOPE (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Mental Hygiene Law § 33.03, respondent appeals from an order that, inter alia, granted petitioner's application to treat respondent over his objection for a 12-month period and provided that, if petitioner submitted a subsequent application within that period seeking treatment over objection, the order shall remain in effect until the subsequent application is granted or denied.

As a preliminary matter, we note that while this appeal was pending, petitioner filed a new application in Supreme Court within the 12-month period provided for in the order on appeal seeking an identical treatment plan, and thus the order on appeal by its terms remains in effect until such time as the new application is either granted or denied, and this appeal is therefore not moot (cf. Matter of Dill v Thomas K., 242 AD3d 1515, 1515 [4th Dept 2025]; Matter of Dill v Edwin B., 239 AD3d 1471, 1472 [4th Dept 2025]).

Respondent contends that the court erred in concluding that exceptional circumstances existed such that the treating physician could testify remotely during respondent's Rivers hearing in the absence of his consent (see Matter of State of New York v Robert F., 25 NY3d 448, 453-454 [2015]; see generally Rivers v Katz, 67 NY2d 485, 497 [1986], rearg denied 68 NY2d 808 [1986]). However, inasmuch as the court's determination permitting the physician to testify remotely is not contained in the record on appeal, the record before us is inadequate to enable our review of that contention (see Luppino v Flannery, 186 AD3d 1082, 1083 [4th Dept 2020]; see also Ross v Northeast Diversification, Inc., 229 AD3d 1282, 1285 [4th Dept 2024]). Respondent, “as the appellant, submitted this appeal on an incomplete record and must suffer the consequences” (Luppino, 186 AD3d at 1083; see generally DeFisher v PPZ Supermarkets, Inc., 186 AD3d 1062, 1062 [4th Dept 2020]).

Contrary to respondent's further contention, petitioner met her burden of establishing by clear and convincing evidence that respondent lacks “the capacity to make a reasoned decision with respect to [the] proposed treatment” (Rivers, 67 NY2d at 497). Petitioner met that burden by adducing evidence that respondent suffered from, inter alia, bipolar disorder, antisocial personality disorder, narcissistic personality disorder and PTSD, and respondent's own testimony reflected that he did not appreciate that he had those disorders or that he needed medication (see Matter of Guttmacher [James M.], 181 AD3d 1313, 1313-1314 [4th Dept 2020]). “ ‘Whether a mentally ill patient has the capacity to make a reasoned decision with respect to treatment is a question of fact for the hearing court, the credibility findings of which are entitled to due deference’ ” (Matter of Dill v Jose P., 236 AD3d 1378, 1379 [4th Dept 2025]).

Petitioner further established that the proposed treatment was “narrowly tailored to give substantive effect to [respondent's] liberty interest, taking into consideration all relevant circumstances, including [his] best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” (Rivers, 67 NY2d at 497-498).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court