MHL ARTICLE 81 - New York State Unified Court System

Matter of Nixon (Corey), NYLJ, 6/4/96, p. 25, col. 1 (Sup. Ct., Suffolk Cty.)(Luciano, J.)
Where AIP had been secreted, and essential obstacle to commencement of Art. 81 proceeding was
petitioner's inability to locate and serve AIP court concludes that remedy may be found by combining
Article 81 proceeding with sua sponte habeas corpus proceeding in which party secreting AIP is
directed to produce AIP before Court in order to allow inquiry as to whether she is being unlawfully
restrained, detained or confined.
Matter of Staiano, 160 Misc.2d 494; 609 N.Y.S.2d 1021 (Sup. Ct., Suffolk Cty., 1994)
Once jurisdiction has been secured over AIP by proper service, service of all other papers is
governed by CPLR 2103, which authorizes service by mail on a party's attorney, thus, service of
cross-petition may be made upon AIP’s counsel and not AIP.
(ii) Notice of Petition
a. Validity of Constitutionality and statutory arguments
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.
b. Who is entitled to the Petition?
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,
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