MHL ARTICLE 81 - New York State Unified Court System

grounds: (1) a cause of action for legal malpractice does not lie against a Court Examiner because
there is no attorney-client relationship between either the Court Examiner and the IP or the Court
Examiner and the bonding company and an attorney cannot be liable to third parties for harm caused
by professional negligence and (2) a cause of action for breach of fiduciary duty also does not lie
because there is no fiduciary relationship between the between either the Court Examiner and the
IP or the Court Examiner and the bonding company.
In re Salvati, 90 AD3d 406; 934 NYS 2d 22 (1st Dept. 2011)
The Appellate Division, 1st Department, unanimously reversed and remanded an order of Supreme
Court, New York County that held that a non -party executor from whom MHL 81.34 approval was
sought to close the guardianship was collaterally estoppel from objecting to the final accounting to
the extent that it was based on accountings from 4 years that had already been approved by the court.
The trial court had allowed discovery only as to the two years that were still open and not yet
approved by the court because the guardian had not made out the defense of collateral estoppel. In
this regard the court reasoned that the executor had not been party to the prior proceedings, and the
guardian had not applied for interim accountings upon notice pursuant to MHL 81.33 and thus the
annual accountings were merely ex parte proceedings that could not bind the executor.
Matter of Steven Siegel, 5/30/08, Index #18311/06 (Sup. Ct., Suff. Cty.)(Sgroi, J.) (unpublished)
Where the Article 81 petition sought only the protective arrangement/single transaction of the
establishment of an SNT funded by a lump sum retroactive social security payment, under MHL
81.16 (b) no Court Examiner was appointed. However, the trustee’s annual accounts could were to
be examined “in a manner similar to that required by MHL 81.32” by one of the individuals
qualified to serve as a Court Examiner pursuant to CPLR 4212 in the capacity of a referee.
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.
246