MHL ARTICLE 81 - New York State Unified Court System

Matter of D.G., 4 Misc.3d 1025A; 798 N.Y.S.2d 343 (Sup Ct, Kings Cty., 2004) (Leventhal, J.)
The Court Evaluator is not an adversarial party. Even if the individual appointed is an attorney
he/she he does not serve as an attorney. The Court Evaluator works as an arm of the court and the
assessment made is of an independent nature. Therefore, the court denied petitioner’s motion to
strike the Court Evaluator’s report and for the Court Evaluator to recuse herself for meeting with the
petitioner without her counsel present.
th 55 Management Corp v. Goldman, NYLJ April 15, 2003 (Sup. Ct., NY Cty.)(Lebedeff, J.)
Out of court statements made to a court evaluator in an 81 proceeding are protected by the privileges
afforded participants in judicial proceedings, therefore, a libel action against the informant did not
lie. The court reasons that the court evaluator plays a vital fact finding role in the article 81process
and his/her function cannot be hampered by the threat that anyone who talks to the C/E will be the
subject of a libel suit.
Matter of Lula XX, 88 N.Y.2d 842; 644 N.Y.S.2d 683 (1996); 667 NE2d 333; 1996
The Court Evaluator is not a party to an Article 81 proceeding.
rd
Matter of Lee “I” (Murphy), 265 A.D.2d 750; 697 N.Y.S.2d 385 (3 Dept., 1999)
It is not the role of court evaluator to be an advocate for AIP but rather to be a neutral advisor to
court.
(ii) Appointment
Matter of Carl Ginsberg v Annie Larralde, 2/19/09 NYLJ 39 (col 2) (1st Dept. 2009)
While traveling in France, the AIP had a stroke and was hospitalized. Upon the petition of the
French hospital to a French court, the French court found that the AIP was in need of a guardian.
Thereafter, the NY court accepted the findings of the French Court and appointed a temporary
guardian in NY without holding a hearing and without appointing a Court Evaluator. On appeal by
the AIP, the Appellate Division held that the NY court had not erred by accepting the findings of
the French court without a hearing or appointment of a Court Evaluator in NY.
Matter of Rochester General Hospital (Levin), 158 Misc.2d 522; 601 N.Y.S.2d 375 (Sup.
Ct., Monroe Cty., 1993)
Where formal statutory notice informed AIP of appointment of court evaluator to explain
proceeding and investigate claims made in application, failure to make such appointment does
not render proceeding defective where counsel has been appointed pursuant to §81.10. Although
Article 81 contains elaborate provisions for appointment and duties of court evaluator, there is no
reason why counsel could not perform most of these same services. As practical matter,
appointment of both court evaluator and counsel has potential for exhausting resources of AIP,
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