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

605
CA 11-02161
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THE APPLICATION OF LOLA
BANKS, PETITIONER-APPELLANT,

FOR THE APPOINTMENT OF A GUARDIAN OF THE          MEMORANDUM AND ORDER
PERSONAL NEEDS AND PROPERTY MANAGEMENT OF
CHARLIE B.H., AN ALLEGED INCAPACITATED PERSON,
RESPONDENT.


JOY A. KENDRICK, BUFFALO, FOR PETITIONER-APPELLANT.

PHILIP A. MILCH, BUFFALO, FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered May 27, 2011 in a proceeding pursuant to Mental
Hygiene Law article 81. The order, insofar as appealed from, denied
petitioner’s request for additional counsel fees for Joy A. Kendrick,
Esq.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the second ordering
paragraph is vacated and the matter is remitted to Supreme Court, Erie
County, for further proceedings in accordance with the following
Memorandum: In this proceeding pursuant to Mental Hygiene Law article
81, petitioner, the property guardian of a now-deceased incapacitated
person, appeals from an order that, inter alia, denied petitioner’s
request for additional counsel fees. At the outset, we conclude that
Supreme Court erred in determining that the rules embodied in 22 NYCRR
part 36 govern the appointment of petitioner’s attorney. Pursuant to
22 NYCRR 36.1 (b) (2) (i) (A), the rules embodied in part 36 “shall
not apply to . . . the appointment of, or the appointment of any
persons or entities performing services for, . . . a guardian who is a
relative of . . . the subject of the guardianship proceeding” and,
here, the record establishes that petitioner was the incapacitated
person’s third cousin. We also note that neither of the exceptions
set forth in 22 NYCRR 36.1 (b) applies to this case (see 22 NYCRR 36.2
[c] [6], [7]).

     We further conclude that the court erred in summarily denying
petitioner’s request for additional counsel fees. Instead, the court
should have permitted petitioner to render a final report and to
petition for judicial settlement thereof (see Mental Hygiene Law §
81.44 [f]), as well as to seek a determination on all administrative
expenses, including counsel fees incurred in providing services to
petitioner (see generally Matter of Albert K. [D’Angelo], 96 AD3d 750,
                                 -2-                          605
                                                        CA 11-02161

752-753), before summarily concluding that petitioner’s attorney is
not entitled to compensation beyond the $28,845 that she has already
been paid with respect to this matter. In view of our determination,
we do not address petitioner’s remaining contentions.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
