MHL ARTICLE 81 - New York State Unified Court System

(iii) Applicability of rules of evidence
Matter of M.R. v H.R., 2008 N.Y. MISC. LEXIS 4347; 240 NYLJ 8 (Sup. Ct. Bronx Cty
2008) (Hunter, J.)
MHLS counsel for the AIP asserts that photographs annexed to the petition were not authenticated
and have no probative value and thus may not be introduced at trial. The court reserved for trial
whether or not the photos will be admitted into evidence Counsel further objected to the use of a
printout from Wikepedia annexed to the Petition that purported to establish the AIP’s clinical
condition. The court held that the printout was unreliable and may not be used at trial.
nd
Matter of Rosa B., 1 A.D.3d 355; 767 N.Y.S.2d 33 (2 Dept., 2003)
The Appellate Division re-emphasized that the rules of evidence apply in an Article 81 proceedings
but that a court, for good cause, may waive the rules in an uncontested proceeding. Specifically, the
physician patient privilege applies and the AIP does not waive it by contesting the application for
guardianship if he does not specifically put his medical condition at issue. In this case, even though
it was a jury trial, the court found that the violation of the privilege was harmless error since medical
testimony was not required and there was sufficient independent evidence of functional incapacity
based upon non-medical evidence.
Matter of Janczak (Ethel Jacobs), 167 Misc.2d 766; 634 N.Y.S.2d 1020 (Sup. Ct., Ontario
Cty., 1995)
Court did not consider portion of DSS record, which consisted of information derived from visiting
nurse service which did not provide home health care services pursuant to contract with DSS, and
police investigator, neither of which had duty to report to agency, even though §81.12 (b) provides
that court may, upon good cause shown, waive rules of evidence, since relaxation of evidence rules
in proceedings under Article 81 only applies in uncontested proceedings. Here, offered exhibit
would not be admissible in evidence as business record, and, therefore, an exception to hearsay rule,
under CPLR 4518 (a), because knowledge of entrant was not based upon information obtained from
a declarant under business duty to report the information.
*[See also all case under physician-patient privilege section]
(iv) Clear and convincing evidence
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
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