MHL ARTICLE 81 - New York State Unified Court System
MHL ARTICLE 81 - New York State Unified Court System
MHL ARTICLE 81 - New York State Unified Court System
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voluntarily, rendering petition moot. Because it should have been discontinued at that point<br />
“obviating the necessity for the motion to dismiss,” court did order petitioner to pay costs of<br />
proceeding plus court evaluator’s fee.<br />
(ii) Discovery<br />
nd<br />
Matter of Schwartz v King, <strong>81</strong>AD3d 737; 921 NYS2d 861 (2 Dept., 2011)<br />
Appellate Division dismissed a proceeding pursuant to CPLR Article 78, inter alia, in the nature<br />
of mandamus to compel the court presiding over an Article <strong>81</strong> hearing to direct the respondent to<br />
produce all discovery items sought by the petitioners noting that the petitioner had failed to<br />
demonstrate a clear legal right to the relief sought<br />
Matter of Mary XX, 33 A.D.3d 1066; 822 N.Y.S.2d 659 (3rd Dept. 2006)<br />
Petitioner, guardian of the IP’s person but not property, moved for a compulsory accounting by the<br />
trustees of the IP’s funds. The trust provided that during the IP’s lifetime the trustees were to pay<br />
the income to the IP and, in their discretion, to pay the principal as needed "to provide adequately<br />
and properly for the support, maintenance, welfare and comfort of [the IP]." The order appointing<br />
petitioner as guardian of the person authorized her to direct the trustees to pay for the IP’s care and<br />
maintenance and to examine all the relevant circumstances, including the opinion of treating health<br />
professionals, the existing financial circumstances, and the existing physical environment as to what<br />
may be the best place for...[IP] to reside and the best arrangements for her continued care and<br />
treatment. The trustees, however, refused to provide petitioner with financial documents when she<br />
requested same, therefore, petitioner commenced a proceeding for a compulsory accounting in order<br />
to fulfill her obligation as guardian. Supreme <strong>Court</strong> denied the requested relief, holding that<br />
petitioner's powers as guardian of the person were limited to making demands of the trustees for<br />
payment of expenses and that the guardian of the person had no powers relative to the financial<br />
assets of the IP. The Appellate Division reversed finding that petitioner had made a sufficient<br />
showing that the requested accounting is necessary in order to carry out her duties as guardian citing<br />
four factors that justify ordering a compulsory accounting and explaining why they were met on<br />
these facts: (1) a fiduciary relationship, (2) entrustment of money or property, (3) no other remedy,<br />
and (4) a demand and refusal of an accounting. The Appellate Division also noted that authorizing<br />
the accounting was not giving the guardian of the person powers over the property because petitioner<br />
was not given the power to manage the financial but only information to exercise those particular,<br />
limited powers conferred upon her in the guardianship order.<br />
Estate of Lawrence Bennett, NYLJ, 2/26/03(Surr. Ct., Queens Cty.)<br />
Motion by alleged distributes of an estate for copy of <strong>Court</strong> Examiner’s file - granted.<br />
st<br />
Matter of Hart, 237 A.D.2d 145; 654 N.Y.S.2d 143 (1 Dept., 1997)<br />
Imposition of $1,500 sanction was proper exercise of discretion in view of precarious health of<br />
224