MHL ARTICLE 81 - New York State Unified Court System

F. Hearings
(i) Hearing required
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 Nelly M., 46 A.D.3d 904; 848 N.Y.S.2d 705 (2nd Dept. 2007)
Supreme Court appointed a temporary guardian without affording the attorney in fact notice and an
opportunity to be heard. The attorney in fact appealed. The Appellate Division held that since the
trial court subsequently made the appointment permanent after a hearing on notice to the appellant
the error complained of has been rendered academic.
Matter of Carl K.D., 45 A.D.3d 1441; 846 N.Y.S.2d 846 (4th Dept., 2007)
Supreme Court appointed a conservator in 1988 prior to the enactment of Art. 81. Subsequently, in
2000, the Surrogate’s Court appointed the same individual as guardian of the person and property
of the IP. For the next 4 years the guardian submitted accountings only to the Surrogate Court and
said accountings were not in compliance with the requirements of MHL 81.33(b). In 2007, the
petitioner in the Art 81 proceeding moved in Supreme Court to compel the guardian to file annual
reports in Supreme that were in compliance with MHL Art 81.33 (b) and to collect his fees. The
guardian cross-moved in Supreme Court to vacate the original 1998 order appointing her as
conservator nunc pro tunc to 2000 when the Surrogate’s Court appointed her as guardian. Supreme
Court granted that cross- motion without a hearing as required by MHL 81.36 (c) and did not direct
the guardian to file annual reports that met the requirements of MHL 81.33(b). The Appellate
Division reversed and remitted to Supreme Court to determine the motion and cross- motion in
compliance with Art 81.
Matter of Diane N.J., 39 A.D.3d 863; 835 N.Y.S.2d 322 (2nd Dept. 2007)
Where the issue of which of the AIP’s family members should serve as guardian was sharply
contested and the AIP”s capacity to select who should serve was as yet undetermined, the Supreme
Court exceeded its authority in permitting the referee to hear and report on the issues raised in the
underlying Article 81 petition. The Appellate Division stated: “Under these circumstances, the
relevant witnesses, including the AIP, should be observed first hand by a Justice rather than by a
referee....”.
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