MHL ARTICLE 81 - New York State Unified Court System

petition. Since MHL §81.10(f) does not apply to retained counsel but only to appointed counsel, she
petitioned instead under 22 NYCRR 130-1.1 alleging frivolous litigation and the court directed that
her counsel fees be paid by petitioner. She also moved, successfully under MHL §81.08(f) for
petitioner to pay the Court Evaluator’s fees.
nd
Matter of Albert S., 300 AD.2d 311; 750 N.Y.S.2d 871 (2 Dept., 2003)
App. Div. sustains trial court’s decision to direct the petitioner to pay only $450 of the $68,000
combined fees of both counsel and the court evaluator and to impose the these costs upon the AIP
EVEN THOUGH the 81 petition was ultimately dismissed for lack of merit. Court reasons that the
petition was herself of meager means and that she did not at out of malice or avarice in bringing the
petition but rather out of concern for the AIP. Strong dissent argues that the 81 proceeding did not
confer any benefit on the AIP and he should not pay.
Matter of Epstein (Epstein), 168 Misc.2d 705; 649 N.Y.S.2d 1013 (Sup. Ct., Suffolk Cty.,
1996)
Court Evaluator may not seek payment of fees from guardianship estate without first showing that
AIP has sufficient funds to pay fees.
Matter of Naimoli (Rennhack), NYLJ, 9/8/97, p. 25 col. 4 (Sup. Ct., Nassau Cty., 1997)
Where petitioner commenced Art. 81 proceeding as result of power struggle over control of relatives
estate, petitioner was held personally responsible for compensation of court evaluator and AIP’s
counsel.
Matter of Slifka, Index No. 00757/96, Sup. Ct., Westchester Cty., Pallella, J., 6/6/96. (NOR)
Court granted AIP’s motion to dismiss Article 81 petition but denied motion to impose sanctions on
petitioner. Petition was for guardianship over trust to pay for AIP’s inpatient care; however he left
hospital voluntarily, rendering petition moot. Because it should have been discontinued at that point
“obviating the necessity for the motion to dismiss,” court did order petitioner to pay the costs of the
proceeding plus the court evaluator’s fee.
Matter of Sylvia Gaskell, 1994 NY Misc. LEXIS 713; 211 N.Y.L.J. 39 (Sup. Ct., Suffolk Cty.,
1994) (Luciano, J.)
Where health care facility had unnecessarily required a family to petition for appointment of
guardian, court would consider ordering facility to pay fee for court evaluator and petitioner's
attorney.
th
Matter of Geer, 234 A.D.2d 939; 652 N.Y.S.2d 171 (4 Dept., 1996)
Court may not direct AIP to pay portion of court evaluator's fee where petition is denied or
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