

Matter of Banks v Ruth B. (2016 NY Slip Op 00612)





Matter of Banks v Ruth B.


2016 NY Slip Op 00612


Decided on January 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 28, 2016

Tom, J.P., Sweeny, Gische, Kapnick, JJ.


72N 401056/13

[*1]In re Steven Banks, etc., Petitioner-Respondent,
vRuth B., A Person Alleged to be Incapacitated, Respondent-Appellant.


Advocates for Justice, New York (Arthur Z. Schwartz of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.

Appeal from order and judgment (one paper), Supreme Court, New York County (Tanya R. Kennedy, J.), entered February 26, 2014, inter alia, appointing a guardian for respondent, unanimously dismissed, without costs, as moot.
By order entered on or about April 7, 2015, after a hearing attended by respondent, Supreme Court appointed Arthur Schwartz, Esq., as respondent's guardian, with her consent. The New York County Clerk issued a commission to Mr. Schwartz pursuant to that order, and respondent has been discharged from the nursing home in which she had been confined. These events render this appeal moot (see Sedita v Board of Educ. of City of Buffalo, 43 NY2d 827, 828 [1977]).
Another ground for dismissal is the insufficiency of the appendix (see CPLR 5528[a][5]), which fails to include certain parts of the record that are relevant and necessary to a determination of the appeal, most notably the transcript of the December 11, 2013 hearing at which respondent's right to appear was allegedly waived and at which proof of incapacity would have been submitted (see e.g. Copp v Ramirez, 62 AD3d 23, 28 [1st Dept 2009], lv denied 12 NY3d 711 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 28, 2016
CLERK


