MHL ARTICLE 81 - New York State Unified Court System

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. While court states that it has a policy of NOT
automatically turning over the petition in such circumstances, it did so in this case because it was
clear that the ex-wife and son already had all of the information in the petition, having been the
petitioners in a prior Article 81 proceeding that had to be discontinued because the AIP was
living out of State.
(iii) Withdrawal of Petition
Matter of Marie H., 42 A.D.3d 782; 839 N.Y.S.2d 857 (3rd., Dept 2007)
A pro se petitioner obtained counsel after the proceeding had begun. Subsequently the newly
obtained attorney, in open court with the petitioner present, stipulated to withdraw the petition. The
petitioner then moved pro se to vacate the stipulation alleging collusion between the Court Evaluator
and the AIP’s granddaughter. Finding no such collusion, the trial court denied the motion and the
petitioner appealed. On appeal, the court found no evidence of the collusion and affirmed.
C. Jurisdiction and Venue
Harvey v. Chemung County, ____F. Supp. 3d___; 2012 US Dist LEXIS 29831 (WDNY 2012)
Plaintiff, in an action in Federal District Court alleged that NYS Supreme Court wrongly determined
that she was unqualified to serve as her husband's guardian and had thereby violated both her and
his civil rights. The District Court held that it lacked jurisdiction because relief could be predicated
only upon a decision that the State Court was wrong and that such a finding would in effect be
deciding an appeal of the judgment in the State Court guardianship proceeding which would be
prohibited under the Rooker-Feldman doctrine.
nd
Matter of Theodore T. v. Charles T., 78 A.D.3d 955; 912 N.Y.S. 2d 72 (2 Dept., 2010)
Noting that “[t]he petitioner bears the ultimate burden of establishing that the court has personal
jurisdiction over the respondent,” and that “[t]he method of service provided for in an order to show
cause is jurisdictional in nature and must be strictly complied with,” the Appellate Division affirmed
so much of the Supreme Court’s order in which it dismissed the petition for lack of jurisdiction due
to the petitioner’s use of a method of service which was not expressly authorized in the order to
show cause. However, the Appellate Division remitted the matter back to the Supreme Court, noting
that the court had failed to explain any of the factors upon which it had relied in ordering that the
petitioner pay the fees generated by the court evaluator and by the AIP’s court-appointed counsel.
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