MHL ARTICLE 81 - New York State Unified Court System

to be heard about the transaction, an order voiding the conveyance was reversed and remanded for
hearing, at which the buyer would have an opportunity to be heard as to the capacity of the seller to
enter into the contract.
Matter of A.S., 15 Misc.3d 1126A; 2007 N.Y. Misc. LEXIS 2693 (Sup. Ct. Westchester Cty.,
2007) (Rosato, J.)
Marriage between an 89 year old woman with dementia who was found incapable of understanding
the nature, effect and consequences of the marriage to her 57 year old chauffeur was annulled in the
context of an Article 81 proceeding on the grounds of want of understanding (DRL Sec.140(c) and
Sec 7 (2)) and fraud (DRL Sec. 140 (e) and Sec 7 (4) where the purported husband fully participated
in and presented evidence on the issue of the validity of the marriage.
nd
In the Matter of Joseph S., 25 A.D.3d 804; 808 N.Y.S.2d 426 (2 Dept 2006)
An annulment is an available remedy in an Article 81 proceeding where the evidence shows that the
AIP is “incapable of understanding the nature, effect and consequences of the marriage”. The
remedy was available in this case even though it was not sought in the original petition because the
at the close of the guardianship proceeding petitioner moved to amend the petition, the court advised
the wife that it would consider the relief and the wife was participated through her own counsel.
The fact that she was not formally made a party was not an impediment to the annulment under these
circumstances because she received a full and fair opportunity to present evidence and actively
litigated the issue.
Powers v. Pignarre, NYLJ, July 19, 2005, p. 18, (Sup Ct., NY Cty) (Drager ,J.)
Guardian of wealthy IP brings action to have IP’s marriage annulled on grounds of lack of capacity
DRL 7(2) and fraud and duress (DRL 7(4), Court annuls marriage for lack of capacity only. Very
detailed discussion of circumstances in text of decision.
Matter of Dennis Diaz, NYLJ, 7/6/04, p. 21 (Sup. Ct., Queens Cty.)(Taylor, J.)
After an Article 81 hearing, a disabled man was found to be in need of a guardian of the person and
property. He was found, among other things, to have the functional level of approximately a 5 th
grader and specifically to be in need of assistance in handling his own finances. Before a guardian
could be bonded and qualified, he retained counsel and entered into a contract of sale to purchase
a tavern with his own funds. Under pre-Art 81 law, contracts entered into by persons adjudicated
incompetent and who have committees or conservators are presumptively void. Contracts with
persons who do not have committees or conservators but are of unsound mind and unable to
appreciate the consequences of their own actions were considered voidable. Article 81 does not
result in a finding of incompetence but rather only findings of specific functional limitations and
guardianship powers tailored to be the least restrictive form of intervention. This AIP was found
to lack the ability to handle his own finances so here, the Court does void and revoke the contract.
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