MHL ARTICLE 81 - New York State Unified Court System

permitting him to use IP’s assets to pay legal fees for transaction. Issue was whether amount of legal
fees, set in an extraordinarily high amount by foreign court, is binding on New York court. NY court
holds that Puerto Rican court could only set fees subject to its approval and awards more reasonable
fees to prevent “an outrageous injustice.”
Matter of Whitehead, 169 Misc.2d 554; 642 N.Y.S.2d 979 (Sup. Ct., Suffolk Cty., 1996)
In proceeding brought by co-committees of Canadian IP, who were appointed by Queen's Bench,
Canada, seeking guardian of IP's New York assets, it is inappropriate for Supreme Court to defer to
determination by Queen's Bench as to a counsel fee payable by IP in proceeding before Supreme
Court. Setting counsel fee by other than Supreme Court's determination pursuant to §81.16 (f) is
contrary to public policy of New York State.
(ii) Other New York Courts
Cathy R. v. Aaron Fischberg, 2003 NY Slip OP 50551U; 2003 NY Misc. LEXIS 67
Resolution of attorneys fees issue within the context of an Art 81 proceedings is res judicata and
the fee issues cannot later be litigated in another court.
E. Court Evaluators
(i) Role
Matter of Incorporated Village of Patchogue v. Zahnd, 3/12/2010 , NYLJ 29, (col. 1) Sup. Ct.
Suff. Cty. (Luft, J.)
Counsel for the AIP moved to dismiss petitioner‘s application after presentation of evidence on
petitioner’s prima facia case, arguing that the Court should have considered only the sufficiency of
that evidence and that on its own, it is not clear and convincing, a point he emphasized in his
additional application to suspend the appointment of the Court Evaluator pursuant to §81.10(g). The
Court concluded, however, that it was appropriate to consider the Court Evaluator's testimony and
report before ruling on the motion to dismiss. The court reasoned :(1) that while suspension of the
appointment of the Court Evaluator is permissible in cases in which the Court has appointed counsel
for the AIP:, the primary purpose for that authority seems to be to avoid unnecessary expense to an
AIP and determination to forego the benefit of a Court Evaluator is generally exercised in the initial
Order to Show Cause or shortly thereafter. Noting that MHL 81.10 does not establish any time
frame for suspension of the Court Evaluator, the Court reasoned that where, as here, the Court
Evaluator has already conducted an investigation and prepared a written report, the value of
receiving the benefit of the Court Evaluator's work is outweighed by any cost savings or procedural
advantage the AIP seek in securing the suspension of the Court Evaluator. The Court further
reasoned that (2) while there is an adversarial element to an Article 81 proceeding, the Court must
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