MHL ARTICLE 81 - New York State Unified Court System

objecting to the substitution, that it was not prejudicial to her, that there was a continued need to
pursue the guardianship, and that the substitute petitioner, the hospital, had been participating in the
proceeding since its inception; that the hospital was a proper petitioner under law and finally, that
the case did not turn on the identity of the petitioner.
Matter of Marian E.B., 38 A.D.3d 1204; 832 N.Y.S.2d 374 (4th Dept., 2007)
Although there had been clear and convincing evidence introduced by petitioner hospital that the
AIP, one of its patients, was incapacitated and in need of a guardian, the trial court denied the
petition for the reason that the petitioner had failed to propose a person or corporation available and
willing to serve. The Appellate Division reversed and remanded for further proceedings holding that
MHL 81.08 (12) provides that the petition shall include, inter alia, the name of the proposed
guardian, if any, and thus does not require that the petition include a proposed guardian.
In the Matter of The Application of Joseph Meisels (Grand Rebbi Moses Teitelbaum); 10
Misc.3d 659; 807 N.Y.S. 2d 268 (Sup. Ct. Kings Cty., 2005)(Leventhal, J.)
An Article 81 petition was brought for guardianship over the Grand Rabbi of The Satmar sect. He
had previously appointed one of his sons and his longtime personal secretary as HCP and POA. The
petition alleged that the Rabbi was disoriented, in need of round the clock assistance and was in
poor health but there was no allegation that he was not receiving the care he needed. The court
allowed the petitioner to submit additional affirmations and considered them as if the pleading had
been amended to include them. In fact, the Court visited the Rabbi at home and noted that he has
a butler who sleeps in his room, an intercom system linked to his room, a personal secretary, a
personal paramedic, a chauffeur and cook and other staff to meet his needs. The judge spoke to the
Rabbi who told him that he was satisfied with his care. Since there were no allegations that he was
at risk due to his limitations, and since the facts clearly established that he was in fact not at risk and
that all his needs were met, the court concluded that there was no showing of a need to commence
a guardianship proceeding and dismissed the petition.
Matter of J.G., 8 Misc.3d 1029A; 806 N.Y.S.2d 445 (Sup. Ct , Bronx Cty., 2005) (Hunter, J.)
“A person otherwise concerned with the welfare of the person alleged to be incapacitated” under
MHL §81.06 cannot be an attorney representing the AIP in a personal injury suit. As the attorney
in the personal injury suit, the petitioner is privy to confidential information that he cannot divulge
unless his client waives the attorney client privilege.
(See also under Counsel - Matter of D.G., 4 Misc.2d 1025A; 798 N.Y.S.2d 343 (Sup. Ct., Kings
Cty, 2004) (Leventhal, J.)
The law firm acting as counsel for the petitioner in an Art 81 proceedings was the same firm acting
as counsel for the AIP in a simultaneously filed medical malpractice suit. This law firm had obtained
the AIP’s medical records in connection with the med mal suit before commencing the Art 81
155