MEMORANDUM The respondent, Marvin Wilson, moves for an order from this Court, pursuant to Civil Practice Law and Rules (hereinafter CPLR) §3212, granting summary judgment and dismissal of this Mental Hygiene Law Article §10 petition which seeks civil management of the respondent. The respondent claims that this relief is warranted because the petitioner is unable to raise a triable issue of fact at a trial of this proceeding as a result of this Court’s ruling dated September 27, 2018 precluding evidence of the sole diagnosis, Other Specified Paraphilic Disorder; Hebephilia (herein after OSPD; Hebephilia). The respondent also seeks an order from this Court releasing him from any confinement with respect to the proceeding herein. The petitioner responds that the respondent’s application for summary judgment must be denied in its entirety as he fails to make a prima facie showing of entitlement to this relief as required by CPLR §3212. The petitioner further submits that even assuming arguendo the respondent has met this initial burden, this Court should not grant respondent’s application as material issues of fact exists.FACTUAL AND LEGAL BACKGROUNDThis Court adopts by reference the legal and factual background detailed in it’s decision dated September 27, 2018.In a decision dated September 27, 2018, this Court granted the respondent’s motion to preclude testimony regarding the diagnosis of OSPD; Hebephilia on the basis that this diagnosis was not generally accepted by the relevant scientific community. This ruling prohibited the petitioner’s expert, Dr. Susan Cox, from making any reference to this diagnosis during a trial of this proceeding. However, this Court ruled that the expert would be permitted at trial to give testimony regarding relevant and probative factors used to conclude that the respondent suffers from a mental abnormality requiring civil confinement.The respondent has now filed this motion herein claiming that summary judgment is warranted as OSPD; Hebephilia is the sole diagnosis on which the petitioner’s expert based her conclusion of mental abnormality. The respondent submits that since this Court has now precluded evidence of this diagnosis, there is no genuine issue of fact that would allow a rational fact finder to determine that the respondent has a mental abnormality. According to the respondent, a named and valid diagnosis is required based on the decisions by the Court of Appeals in State v. Shannon S., 20 NY3d 99(2012) and State v. Donald DD., 24 NY3d 174(2014). Without a valid diagnosis to support a claim of mental abnormality, the respondent submits that this Court is compelled to grant summary judgment. The respondent cites a number of cases from appellate and lower courts who have interpreted the aforementioned Court of Appeal’s decisions in this manner including State v. Odell A., 132 AD3d 1004, (2nd Dept 2015) (dismissing a petition where antisocial personality disorder was the sole diagnosis for a finding of mental abnormality), State v. Ralph P., 54 Mis 3d 171 (New York County [2016])(granting summary judgment after finding the only diagnosis of OSPD; Hebephilia inadmissable), State v. Raymundo V., 47 Misc 3d 909 (Monroe County [2015]) (granting summary judgment where the sole diagnoses were antisocial personality disorder and alcohol use disorder), State v. Harry M. (Kings County Index# 3482/2012 [2015]) (determining that summary judgement was appropriate where antisocial personality disorder remained the only diagnosis for a finding of mental abnormality) and State v. Hugh H. (Suffolk County Index 12158/15 [2016]) (granting the respondent’s motion for summary judgment and dismissing petition after precluding evidence of the sole diagnosis of OSPD; Hebephilia).The petitioner in its response submits that respondent has failed to make a prima facie case for summary judgment and furthermore, the “diagnoses and conditions” ascribed by Dr. Cox are legally sufficient to support a finding of mental abnormality. The petitioner submits, without persuasive support, that a finding of mental abnormality may be made even where there is no recognized diagnosis. The petitioner further submits that Donald DD. stands for the proposition that despite any weakness in a diagnosis, evidence that gives a “detailed psychological portrait” of the offender is relevant and probative on the issue of whether the respondent has difficulty controlling his sex offending behavior and therefore admissible. According to the petitioner, despite this Court’s ruling precluding evidence of OSPD; Hebephilia, genuine issues of fact remain regarding the respondent’s attraction to teenaged males and his difficulty controlling this behavior.The petitioner further submits that the respondent’s “chronic deviant sexual preference for teenaged males as well as his admitted emotional and psychological connection with them is a condition sufficient to the finding of mental abnormality under Shannon S. The petitioner urges this Court to follow the reasoning of State v. Nervina, 120 AD3d 941 (4th Dept 2014). In Nervina the court held that a finding of mental abnormality was not against the weight of the evidence where two of the petitioner’s experts claimed that the unidentified personality disorders that they diagnosed the respondent to have predisposed him to commit sex offenses and caused the respondent to have serious difficulty in controlling his behavior. Nervina at 942. The petitioner also encourages this Court to consider the holding of State v. Kevin Johnson (Kings County Index # 4117/2014 [2015]) where, in a motion to re-argue a finding of probable cause, the court concluded that, particularly at the probable cause stage of the proceedings, “…the Court of Appeals did not hold, as a matter of law, that there must be a finding or a diagnosis of a sexual mental condition or disorder to support a finding of a mental abnormality”. See Johnson at page 25. In Johnson, unlike this instant case, the respondent was diagnosed with multiple conditions including antisocial personality disorder and psychopathy as well as alcohol use disorder.In his reply papers, the respondent again urges this Court to grant summary judgment and claims that the petitioner’s response fails to raise a triable issue of fact, that the “condition” of the respondent alleged by the petitioner is a backdoor attempt by the petitioner to introduce inadmissible evidence and that the petitioner’s interpretations of Shannon S., Donald DD., Johnson and Nervina are erroneous at best and disingenuous at worse.This Court has reviewed the respondent’s application and considered the arguments in the motion papers submitted by the parties, the submitted reported findings of the parties’ experts, the court record and appropriate statutory and case precedent. After careful review, this Court makes the following conclusions of law:CONCLUSIONS OF LAWA motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” CPLR §3212. The Court of Appeals in Alvarez v. Prospect Hospital, 68 NY2d 320 (1986) reiterated that “…the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law,…once [and if] this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.” Supra at 324.In considering whether or not the respondent is entitled to summary judgment under the facts herein, a review of the definition of mental abnormality under Mental Hygiene Law Article §10 is appropriate. Mental abnormality is defined as:a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person have serious difficulty in controlling such conduct.Mental Hygiene Law §10.03(i).It is apparent to this Court, from the plain reading of the statute along with the holdings of several appellate courts and courts of concurrent jurisdiction, that a valid diagnosis is required by Mental Hygiene Law Article §10 for a finding of mental abnormality. Thus, while the petitioner is correct that according to Shannon S., a finding of mental abnormality does not require that a condition or diagnosis be included in the Diagnostic and Statistical Manual of Mental Disorders, it is intellectually dishonest not to view this holding in conjunction with Donald DD. In Donald DD., the Court of Appeals specifically held that evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality, as defined by Mental Hygiene Law Article §10, when such diagnosis is not accompanied by any other diagnosis (emphasis added). See Donald DD. at 190.Without evidence of the diagnosis of OSPD; Hebephilia, the petitioner submits that the proffered expert’s testimony would focus on respondent’s attraction to 14-16 year old boys and that this focus and attraction is a disease or disorder sufficient to satisfy a determination of mental abnormality as defined in Mental Hygiene Law Article §10.03 (i). It is apparent to this Court that such testimony is simply an attempt to use evidence of the diagnosis of OSPD; Hebephilia. Indeed, the petitioner’s expert defines OSPD; Hebephilia as [a condition that] involves a period of at least 6 months of recurrent and intense sexual arousing fantasies, sexual urges or behaviors involving sexual activity with a child, usually aged 11 to 14 years old. While this Court’s prior ruling permitted the expert to give testimony regarding relevant and probative factors used in her determination, it is clear that besides diagnosis of OSPD; Hebephilia, Dr. Cox simply has insufficient support for her conclusion of mental abnormality. Indeed, in her report, Dr. Cox concludes that additional factors supporting mental abnormality include “lack of emotional intimate relationships with adults and the fact that the respondent has never been married [and has a] small social network”. Furthermore, Dr. Cox makes a specific determination that the respondent was not diagnosed as having an anti-personality disorder. Under these circumstances, this Court determines there is no valid diagnosis supporting a determination of mental abnormality, as defined in Mental Hygiene Law Article §10.03(i). See State v. Timothy R., 2018 N.Y. Slip Op. 08940(2nd Dept 2018) (holding that for a finding of mental abnormality at least one diagnosis which meets the legal predicate for mental abnormality is required).The facts herein are clearly distinguishable from the cases cited by the petitioner as the respondents in both Nervina and Johnson appear to suffer from multiple conditions supporting a finding of mental abnormality. In light of the Court of Appeals decisions in Shannon S. and Donald DD., as well as the numerous aforementioned second department and lower court cases which have all held that a valid diagnosis is required for a finding of mental abnormality, this Court determines the respondent has made a prima facie case for summary judgment pursuant to CPLR §3212. Furthermore, this Court determines that the petitioner has failed to demonstrate that there is any genuine issue of material fact that remains.Accordingly, the respondent’s motion for summary judgment is granted in all respects, the petition herein is dismissed and the respondent is released from custody with respect to this proceeding.The foregoing constitutes the order, opinion and decision of the Court.
