        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1205
CA 13-00704
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


SUNRISE NURSING HOME, INC., PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

MARION FERRIS, ALSO KNOWN AS MARION WALLIS,
ET AL., DEFENDANTS,
AND STANLEY FERRIS, INDIVIDUALLY AND AS POWER
OF ATTORNEY FOR MARION FERRIS, ALSO KNOWN AS
MARION WALLIS, DEFENDANT-APPELLANT.
-----------------------------------------------
GLORIA FLORES BALDWIN, AS GUARDIAN AD LITEM FOR
MARION FERRIS, ALSO KNOWN AS MARION WALLIS,
RESPONDENT.
(APPEAL NO. 1.)


FINOCCHIO & ENGLISH, SYRACUSE (VINCENT J. FINOCCHIO, JR., OF COUNSEL),
FOR DEFENDANT-APPELLANT.

GLORIA FLORES BALDWIN, BALDWINSVILLE, RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered July 12, 2012. The order, among other
things, adjudged that defendant Stanley Ferris, individually and as
power of attorney for Marion Ferris, also known as Marion Wallis, must
pay respondent Gloria Flores Baldwin, guardian ad litem for Marion
Ferris, also known as Marion Wallis, the sum of $13,142.33 for
services rendered in this action.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In appeal No. 1, Stanley Ferris (defendant),
individually and as power of attorney for his wife, defendant Marion
Ferris, also known as Marion Wallis, appeals from an order granting
the application of respondent, the guardian ad litem for Marion, for
an interim award of fees. In appeal No. 2, defendant, individually,
appeals from an order denying that part of his motion to dismiss the
sixth cause of action based on plaintiff’s failure to state a cause of
action (see CPLR 3211 [a] [7]), and from those parts of his purported
motion to dismiss the first and second causes of action, which we note
were asserted only against Marion, as well as the seventh cause of
action against him, based on plaintiff’s lack of legal capacity to sue
(see CPLR 3211 [a] [3]).
                                 -2-                          1205
                                                         CA 13-00704

     Contrary to defendant’s contention in appeal No. 1, Supreme Court
had the authority to make an interim award of fees to the guardian ad
litem (see generally CPLR 1204; Haynes v Haynes, 200 AD2d 457, 457,
affd 83 NY2d 954; Matter of Infant X. v Children’s Hosp. of Buffalo,
197 AD2d 884, 884). Moreover, we conclude that the court did not
abuse its discretion with respect to the amount of the award in view
of the guardian ad litem’s efforts in the case (see Matter of Reitano,
89 AD3d 535, 535-536, appeal dismissed sub nom. Cangro v Marangos, 18
NY3d 985, reconsideration denied 19 NY3d 992; see also Haynes, 83 NY2d
at 957), or with respect to its apportionment of the award among the
parties (see Matter of HSBC Bank USA, N.A. [Knox], 98 AD3d 300,
322-323, lv denied 20 NY3d 860). We therefore affirm the order in
appeal No. 1. Finally, we decline to impose sanctions against
appellate counsel for defendant, as power of attorney, as urged by the
guardian ad litem in appeal No. 1 (see generally Matter of Gademsky v
Masset, 213 AD2d 1082, 1082).

     We note at the outset with respect to appeal No. 2 that the first
and second causes of action, corresponding to the first and second
ordering paragraphs of the order on appeal, have been discontinued
pursuant to a stipulation, and thus any contentions with respect to
those causes of action or ordering paragraphs are moot (see Virella v
Allstate Home Care of Buffalo, Inc., 59 AD3d 1100, 1101). As now
relevant in appeal No. 2, defendant contends that the court erred in
failing to grant his motion with respect to the sixth and seventh
causes of action. We conclude, however, that defendant did not move
to dismiss the seventh cause of action, nor indeed did he seek
dismissal of the third and eighth causes of action. Thus, the court’s
consideration of those causes of action was improper (see generally
Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1038-1039), and any
contention by defendant on appeal with respect to them is not properly
before us. We therefore modify the order in appeal No. 2 by vacating
the third, seventh, and eighth ordering paragraphs (see County of
Oneida v Estate of Kennedy, 300 AD2d 1091, 1092). We note in
particular that, because defendant did not move against those causes
of action, he should not be precluded from subsequently doing so (see
CPLR 3211 [e]).

     Contrary to the contention of defendant, individually, in appeal
No. 2, plaintiff’s sixth cause of action properly asserts a cause of
action for necessaries against him in his individual capacity (see
generally Medical Bus. Assoc. v Steiner, 183 AD2d 86, 90-91), and we
thus conclude that the court properly denied that part of the motion
seeking to dismiss that cause of action.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
