MHL ARTICLE 81 - New York State Unified Court System

Matter of Harry G., 12 Misc. 3d 232; 820 N.Y.S.2d 426 (Sup. Ct., Nassau Cty., 2006)
(Asarch, J.)
Respondents, AIP’s ex-wife, who held the POA and HCP, and the AIP’s son was served with Notice
of Petition and thereafter requested from petitioner’s counsel a copy of the petition, alleging that
there was information or allegations therein that affected their property rights and that they were
therefore entitled to full and specific notice, an opportunity to be heard and an opportunity to
confront their accusers in court. AIP’s counsel refused to turn it over, both to protect his rights in the
Art 81 proceedings as well an his rights in the long resolved matrimonial proceeding that the wife
sought to reopen. (A) A constitutional challenge to MHL 81.07 (g)(2) was not decided because the
respondent had failed both to specifically brief the alleged constitutional infirmities and also because
she to failed to give notice of the challenge to the Attorney General pursuant to Exec Law §71.
However, the court did observe that she had in fact been given notice of the proceeding including
the court date, was entitled to be present on that date with her own counsel and was able to determine
her desired level of involvement in the proceeding. (B) Also the court held that the specific
provisions of Article 81 supercede the general directions of CPLR 403(b) since MHL 81.07 as
amended is clearly inconsistent with general provisions of CPLR 403.
th
Matter of Margot Lipton, 303 A.D.2d 915; 757 N.Y.S.2d 424 (4 Dept., 2003)
Failure of proper service upon all parties named in MHL 81.07 resulted in vacating of appointment
of guardian.
Matter of Hammons (McCarthy), 168 Misc.2d 874; 645 N.Y.S.2d 392, (Sup. Ct., Queens
Cty., 1996)
Court improperly fashioned alternate method of service other than personal delivery pursuant
to§81.07 (d)(2)(i) because AIP's lifestyle of living and sleeping among stray cats in his apartment
and walking throughout neighborhood to feed stray cats has made him difficult individual for the
process server to locate. Statute requires proof that AIP knew service was being attempted and was
affirmatively evading service before an alternate method of service can be authorized.
Matter of Kautsch/Matter of Barrios Paoli, 173 Misc.2d 736; 662 N.Y.S.2d 388 (Sup. Ct.,
Queens Cty., 1997)
Petitioner sufficiently demonstrated that AIP refused to accept service, thereby authorizing court to
grant alternate method of service other than personal delivery pursuant to §81.07 (d)(2)(i) where
process server spoke with AIP who was behind locked door, AIP refused to buzz server through
when he stated that he had papers to be served and when process server returned on two following
days, no one answered bell. AIP's refusal to open door when process server stated that he had papers
to be served constitutes refusal.
158