MHL ARTICLE 81 - New York State Unified Court System

whether such powers are appropriate.
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.
Matter of Serrano, 179 Misc.2d 806; 686 N.Y.S.2d 263 (Sup. Ct., Bronx Cty., 1998)
Foreign jurisdictions’ findings of incompetency not entitled to full faith and credit, particularly when
AIP is not a domiciliary of that jurisdiction.
th
Matter of Tracey L. Card (Siragusa), 214 A.D.2d 1022; 626 N.Y.S.2d 336 (4 Dept., 1995)
Venue lay in county where estranged AIP spouse was residing at time of filing of Art. 81 petition,
not in county where marital home was located.
D. Counsel
(i) Appointment and disqualification
Matter of Barbara P., 8/6/2010, NYLJ, 40 (col 3.)(2nd Dept. 2010)
Appellate counsel was incorrectly assigned pursuant to Judiciary Law § 35 to represent an AIP in
an appeal from an order issued under MHL Article 81. The Appellate Division later corrected itself
to reflect that the appointment should have been made under MHL 81.10 and County Law 18-B.
Cheney v. Wells, NYLJ 11/5/08 (Surr Ct., NY Cty. 2008)(Surr. Glenn)
Counsel for a defendant in a civil action sought to withdraw from representation, asserting an
inability to communicate with the client and an inability to carry out her employment effectively as
required by DR 2-110. This was the fourth such counsel who sought to withdraw for the same
reason. The court opined that this defendant was likely incapable of managing the litigation and
unable to appreciate the consequences of that incapacity, which included the loss of her homes and
over 3 million dollars, and that a proceeding under MHL Art 81 should be held to determine whether
she was in need of a limited property guardian to manage the litigation on her behalf. The court
granted the fourth counsel’s motion to withdraw contingent upon her commencement of an Art 81
proceeding, even though such a petition would necessarily require release of confidential
communications between the attorney/petitioner and her former client, the now AIP. In assessing
whether it would be ethical to permit the attorney to serve as the petitioner, the court held that the
NY Code of Professional Responsibility did not provide sufficient guidance and therefore it looked
to the ABA Model Rules of Professional Responsibility and the Restatement and determined that
there was no ethical impediment to such a petition.
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