MHL ARTICLE 81 - New York State Unified Court System

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Matter of Foley (Messina), 150 A.D.2d 884; 541 N.Y.S.2d 141 (3 Dept., 1989)
Death of AIP rendered moot appeal of order appointing guardian.
Estate of Suvlien, NYLJ, 12/17/99, p. 32 (Surr. Ct., Kings Cty.)(Feinberg, J.)
Estate’s administrator sought order pursuant to SCPA §§2103, 2105 to compel decedent’s former
guardian to turn over assets of estate. Although guardian filed final accounting of decedent’s assets
with Supreme Court, he retained them pending settlement of matter. Court granted order,
acknowledging silence of both SCPA and Article 81 as to when turnover of assets should be made.
It followed very recent Manhattan Surrogate Court decision (Tilly Baron) holding that because
authority of guardian terminates upon death of ward, ward’s assets must be turned over to “duly
appointed personal representative of such ward’s estate once such fiduciary has been appointed.” In
this case, as in Tilly Baron, Court directs that Guardian should hold a reserve pending a final order
discharging the guardian for funds that might reasonably needed to cover administration expenses
or debts in the guardianship proceeding.
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Vellosi v. Brady, 267 A.D.2d 695; 698 N.Y.S.2d 361 (3 Dept., 1999)
Power of attorney and appointment as guardian were extinguished by operation of law upon father's
death.
Matter of Tepperman (Bloom), NYLJ, 9/12/95, p. 30, col. 2 (Nassau Sup.)(Rossetti, J.)
After finding of incapacity and settlement but before entry of judgment, AIP died. Dispute about
allegedly improper transfers of assets existed between petitioner, AIP’s sister, and respondent friends
of AIP. This was settled by stipulation during guardianship proceeding although no order was
entered because AIP died. Court held that it could not enter order enforcing stipulation because
guardianship proceeding was abated by AIP’s death. However, as matter of statute (§81.16) and
equity, court did have authority after AIP’s death to order and fix court evaluator’s and petitioner’s
attorneys’ fees for proceeding as claims against estate.
K. Payment of Rent or hospital charges during pendency of Art. 81
proceeding - stay of evictions
Efim Meker v. City of NY, 2008 NY Slip Op 51656U; 20 Misc. 3d 1128A (Sup Ct, Kings Cty.)
(Miller, J.) (2008)
A landlord sued the city for rent that had accrued during the pendency of a stay of eviction issued
in an Article 81 proceeding brought by DSS. The landlord argued that to deny him the rent
amounted to an unconstitutional "taking" in violation of the 5th Amendment. The city moved to
dismiss and the court dismissed the complaint , stating, inter alia: "There is a strong public interest
in not evicting an incapacitated person. The purpose of MHL Article 81 is to provide guardians for
persons likely to suffer harm because they are unable to function in society ... the government has
considerable latitude in regulating landlord-tenant relationships to preclude eviction in hardship
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