MHL ARTICLE 81 - New York State Unified Court System

In the Matter of Yehuda C., 63 A.D.3d 923; 882 N.Y.S.2d 179 (2nd Dept. 2009)
The appellants had been granted guardianship of their incapacitated son in a proceeding in Kings
County. All of the child's property, including a sizable medical malpractice settlement, was placed
in an SNT. The guardians then moved their family to Israel for religious reasons and later petitioned
for, and were granted, guardianship of the person and property of their son by the Family Court in
Israel. Upon subsequent application to the Supreme Court in kings County to terminate the
guardianship and SNT, Supreme Court denied the application. On appeal, the Appellate Division
held that there was no no longer a need for a New York guardianship and that it would be impractical
and unnecessary for a New York court and Court Examiner to provide duplicate supervision of the
guardianship of a child in a foreign land but that while the guardianship of the person and property
of the child should be terminated, there was no basis for the termination of the SNT.
Estate of McLaren, 6/10/09, NYLJ, 47 (col. 1) (Surr Ct, Queens Cty) (Surr. Nahman)
A legatee under a Will petitioned to have the named executor removed and to have an Art 81
guardian appointed for him. The Surrogate denied the petition and held that under MHL 81.04(a)
only the Supreme Court and the County Court in the counties outside the city of New York have the
power to appoint an Article 81 guardian. The court further added that the individual for whom they
sought a guardian may not be a resident of this State.
Matter of P.V., 2009 NY Misc. LEXIS 2497; 241 NYLJ 107 (Sup. Ct. NY Cty.)(Visitacion-
Lewis, J.)
Petitioner wife sought the appointment of a guardian under Article 81 for her husband, an alleged
incapacitated person, laying comatose in a Czech Republic hospital. A court evaluator's report
recommended dismissal of the action for lack of jurisdiction. The court agreed, finding neither the
petitioner or respondent have lived in New York State since 1995, thus no nexus existed between
the parties and the State. Petitioner contended the existence of a Citibank joint account was the basis
upon which New York courts may assume jurisdiction. The court noted as a joint account holder,
petitioner had full access to such account without attaining New York State guardianship. It ruled
the absence of the petitioner and respondent from the state, as well as the country, rendered it
impractical and inappropriate to accord petitioner guardianship. Hence, the petition was dismissed.
Matter of Fister, 19 Misc.3d 1145A; 2008 N.Y. Misc. LEXIS 3344 (Sup. Ct. , Queens Cty.
2008) (Thomas, J.)
After a hearing held in NY County upon an Order to Show Cause submitted in that county, the AIP
was determined to be an IP and an Order and Judgement was entered in such county appointing a
guardian for a period of three years. The guardian later moved within the three year period, by order
to show cause in NY County to modify the original order to the extent of changing the term from a
period of three years to an indefinite period. Another judge, to whom the order to show cause was
presented, declined to sign the order, instead, issuing an order, sua sponte, directing that venue of
the action be changed to Queens where the IP was then residing. The court in Queens County
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