MHL ARTICLE 81 - New York State Unified Court System

Matter of Staiano, 160 Misc.2d 494; 609 N.Y.S.2d 1020 (Sup. Ct., Suffolk Cty., 1994)
Although Article 81 and its predecessors do not mention cross petitions, legitimacy of cross-petition
as pleading has been implicitly acknowledged. In addition, because cross-petitions are allowable in
MHL Art. 77 proceedings, it seems reasonable to conclude that use of cross-petition in guardianship
proceeding is also permissible procedure where cross-petition raises issues as to which court clearly
has jurisdiction.
Matter of Rochester General Hospital (Levin), 158 Misc.2d 522; 601 N.Y.S.2d 375 (Sup. Ct.,
Monroe Cty., 1993)
Representative of hospital other than CEO, such as V.P. of administration, is authorized to
commence proceeding as "a person otherwise concerned with the welfare of the person alleged to
be incapacitated."
st
Matter of Petty (Levers), 256 A.D.2d 281; 682 N.Y.S.2d 183 (1 Dept., 1998)
Petition is deficient where it consists of conclusory allegations of incapacity without specific factual
allegations.
B. Service and Returns of Petitions and Orders to Show Cause
(i) Proper and timely Service
Matter of Anthony Rose, 26 Misc.3d 1213A; 907 N.Y.S.2d 104 (Sup.Ct. Dutchess Cty)
(Pagones, J.)
Upon motion by counsel for AIP, the court declined to dismiss the petition under CPLR 3211(a) (10)
as jurisdictionally defective. Petitioner had failed to serve the AIP’s wife, mother father, sister and
the local Department of Social Services from which the AIP was receiving benefits. Petitioner did
serve the petition on those parties upon receiving the motion papers. The court held that this failure
of service was not a jurisdictional defect and declined to dismiss the petition on those grounds,
although it did ultimately dismiss the petition on other grounds.
Matter of Theodore T., 28 A.D.3d 488; 813 N.Y.S.2d 733 (2nd Dept. 2006)
Appellate Division reverses trial court’s denial of motion to dismiss OSC which was made returnable
on a date that was 12 days late pursuant to former §81.07.
157