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

592
CA 15-00223
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


IN THE MATTER OF THE APPLICATION OF MICHELE M.
AZZI, PETITIONER-RESPONDENT, FOR THE APPOINTMENT
OF A GUARDIAN OF THE PROPERTY OF DAVID J.D., AN   MEMORANDUM AND ORDER
ALLEGED INCAPACITATED PERSON, RESPONDENT.
-------------------------------------------------
JENNY S. TRAPANI, APPELLANT.


JENNY S. TRAPANI, APPELLANT PRO SE.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (BRIAN LAUDADIO OF COUNSEL),
FOR PETITIONER-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Surrogate’s
Court, Monroe County (Edmund A. Calvaruso, S.), entered December 10,
2014 pursuant to Mental Hygiene Law article 81. The order and
judgment, among other things, granted the petition and appointed
petitioner as guardian of the property of David J.D.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the cross petition
is reinstated, and the matter is remitted to Surrogate’s Court, Monroe
County, for further proceedings in accordance with the following
memorandum: Petitioner commenced this proceeding in Surrogate’s Court
pursuant to Mental Hygiene Law article 81, seeking a determination
that her brother (hereafter, AIP) is an incapacitated person and
seeking an order appointing her as guardian of his property. The
Surrogate granted the petition and appointed petitioner guardian of
the property of the AIP. We reverse.

     In 2011, the AIP, the youngest of 10 adult siblings, was named
beneficiary of two annuities purchased by his mother from a life
insurance company. The AIP’s mother also executed a will in January
2012 directing in part that a trust for the AIP’s benefit be
established with half of the proceeds from the sale of her house after
her death, and naming two of the AIP’s brothers as cotrustees. The
AIP’s mother died less than two weeks later, whereupon one of the
brothers serving as cotrustee had the AIP sign a disclaimer renouncing
almost 70% of his interest in the annuities in favor of his siblings,
allegedly consistent with the mother’s wishes. Another of the AIP’s
brothers objected to the validity of the disclaimer, and the life
insurance company commenced a federal interpleader action in June 2012
to determine the parties’ rights with respect to the annuities.

     The AIP moved to Arizona to live near the other brother serving
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                                                         CA 15-00223

as cotrustee of the trust established by their mother, and he lived
there for over a year before petitioner, without notice to the brother
living in Arizona, drove the AIP back to New York in June 2013.
Immediately upon arriving in New York, petitioner commenced this
proceeding seeking to be appointed guardian of the AIP’s property.
The petition, which also requested petitioner’s appointment as
temporary guardian for the AIP pending the outcome of this proceeding,
listed all of the AIP’s nine siblings as “interested parties.” The
day after the petition was filed, the AIP, represented by the same
attorney who represented petitioner in this proceeding, moved to stay
the proceedings in the federal interpleader action pending the outcome
of this guardianship proceeding. Less than a week later, the
Surrogate, without appointing independent counsel for the AIP,
appointed petitioner as temporary guardian for the AIP.

     Six of the AIP’s siblings (objectants) opposed the petition and,
through one objectant, filed a cross petition. The cross petition
asserted that the AIP, while requiring some assistance with financial
and other personal matters, does not require the appointment of a
guardian. The cross petition further asserted that, if the Surrogate
were to conclude that the appointment of a guardian was necessary,
petitioner should not be appointed. Petitioner, represented by the
same attorney who represented the AIP in the federal interpleader
action and who appeared on behalf of the AIP in this proceeding, moved
to dismiss the cross petition. In support of that motion, petitioner
submitted a psychological evaluation diagnosing the AIP with “mild
mental retardation” and “mild intellectual disability,” and
recommending the appointment of a guardian to assist the AIP with his
personal and property management needs. Objectants moved to dismiss
the petition and to disqualify the law firm representing petitioner
based on an alleged conflict of interest arising from the law firm’s
dual representation of both the AIP and petitioner. Objectants also
requested that the Surrogate appoint independent counsel for the AIP.

     The Surrogate denied objectants’ motion and granted petitioner’s
motion to dismiss the cross petition on the grounds that objectants,
although named as “interested parties” in the petition, lacked
standing to participate as parties in this proceeding, and that the
cross petition failed to state a cause of action. The Surrogate
thereafter conducted a “hearing,” apparently without notice to
objectants, at which it admitted the psychological evaluation of the
AIP prepared on behalf of petitioner and took judicial notice of the
court evaluator’s report, but took no testimony. The Surrogate then
granted the petition, determining that the AIP is an incapacitated
person and appointing petitioner as his guardian. At the request of
petitioner’s counsel, the Surrogate also invalidated the annuity
disclaimer signed by the AIP, even though the petition did not seek
that relief. An order and judgment granting that relief was
thereafter entered, and objectants appealed.

     Initially, we reject petitioner’s contention that objectants are
not aggrieved by the order and judgment and thus lack standing to
appeal. A person is aggrieved and has standing to appeal if he or she
“has a direct interest in the controversy which is affected by the
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                                                         CA 15-00223

result and . . . the adjudication has a binding force against the
rights, person or property of the party or person seeking to appeal”
(Matter of Grace R., 12 AD3d 764, 765 [internal quotation marks
omitted]; see Matter of Harold W.S. [Mark P.—Lauralyn W.], 134 AD3d
724, 724). Here, objectants are aggrieved by the nullification in the
order and judgment of the annuity disclaimer, in which objectants had
a direct financial interest.

     We agree with objectants that the Surrogate erred in dismissing
the cross petition based on lack of standing. We conclude that
objectants, the AIP’s and petitioner’s adult siblings, are “person[s]
otherwise concerned with the welfare of the [AIP]” (Mental Hygiene Law
§ 81.06 [a] [6]), and were entitled to notice pursuant to section
81.07 (g) (1) (i). Objectants are therefore proper parties to this
proceeding (see Matter of Astor, 13 Misc 3d 862, 866-867), with the
right to present evidence, call witnesses, cross-examine witnesses,
and be represented by counsel (see § 81.11 [b]; Matter of Eggleston
[Muhammed], 303 AD2d 263, 266). Further, the petition did not seek to
have the annuity disclaimer signed by the AIP invalidated, and
objectants reasonably expected that the issue of the disclaimer’s
validity would be resolved in the federal interpleader action that was
commenced to address that issue. Given objectants’ financial interest
in the validity of the disclaimer, “[t]he failure . . . to provide
notice that the issue of the validity of the [disclaimer] was to be an
object of the proceeding[] deprived [objectants] of notice and an
opportunity to be heard” (Matter of Lucille H., 39 AD3d 547, 549; see
Matter of Dandridge, 120 AD3d 1411, 1413-1414). We also conclude that
the cross petition, which, contrary to the Surrogate’s conclusion,
sought relief in the alternative, should not have been dismissed for
failure to state a cause of action.

     Objectants next contend, and petitioner correctly concedes, that
the Surrogate erred in failing to appoint independent counsel for the
AIP or to inform the AIP of his right to counsel. Mental Hygiene Law
§ 81.10 (c) (5) requires a court to appoint counsel when a petition
requests the appointment of a temporary guardian unless the court is
satisfied that the AIP is represented by counsel of his or her own
choosing. Here, the Surrogate failed to appoint counsel for the AIP
when petitioner was appointed temporary guardian, and there is no
basis in the record to conclude that the Surrogate was satisfied that
the AIP, who indeed was alleged in the petition to be incompetent, was
represented by counsel of his own choosing. Petitioner also correctly
concedes that, at the hearing in this guardianship proceeding, the
Surrogate was required to explain to the AIP, on the record, that he
had the right to have counsel appointed (see § 81.11 [e]), and the
Surrogate failed to do so.

     We cannot agree with petitioner that the Surrogate’s errors are
harmless based on the AIP’s agreement to her appointment as guardian
(cf. Matter of Gladwin, 35 AD3d 1236, 1237). The petition itself
avers that the AIP is “easily influenced and persuaded by others” and
that the disclaimer is invalid in part because the AIP “did not have
the benefit of his own independent counsel” before signing the
disclaimer. In our view, the failure to appoint independent counsel
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                                                         CA 15-00223

for the AIP renders it impossible to determine whether the AIP’s
agreement to petitioner’s appointment as guardian was an informed
decision. We therefore reverse the order and judgment, reinstate the
cross petition and remit the matter to Surrogate’s Court for
appointment of counsel for the AIP and further proceedings on the
petition and cross petition.

     Finally, we conclude that the Surrogate erred in denying, without
a hearing, objectants’ motion to disqualify the law firm representing
petitioner. That law firm represented the AIP in the federal
interpleader action, and previously appeared on behalf of both the AIP
and petitioner in this guardianship proceeding. Although, as noted,
independent counsel must be appointed for the AIP, it is not clear on
this record whether the interests of petitioner and the AIP are
materially adverse; whether the AIP is capable of giving informed
consent in writing to such representation in light of his alleged
incapacity; and whether the AIP imparted confidential information to
the law firm that could be used to the AIP’s disadvantage (see Rules
of Professional Conduct [22 NYCRR 1200.0] rule 1.9; Matter of
Strasser, 129 AD3d 457, 457-458; Matter of Wogelt, 171 Misc 2d 29, 34-
36). Thus, we further remit the matter to Surrogate’s Court to
determine the disqualification motion following a hearing.

     In light of our determination, we do not address objectants’
remaining contentions.




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
