

Matter of Banks (Gwendolyn R.) (2016 NY Slip Op 02903)





Matter of Banks (Gwendolyn R.)


2016 NY Slip Op 02903


Decided on April 14, 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 April 14, 2016

Tom, J.P., Friedman, Saxe, Richter, JJ.


595 500033/15

[*1]In re Steven Banks, etc., Petitioner-Respondent,
andGwendolyn R., A Person Alleged to Be Incapacitated, Respondent-Appellant.


Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Laura Visitación-Lewis, J.), entered June 23, 2015, which, to the extent appealed from as limited by the briefs, appointed a guardian over the person and property of the alleged incapacitated person, Gwendolyn R. (the AIP), pursuant to article 81 of the Mental Hygiene Law (the MHL), unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, the matter remanded for the immediate appointment of a temporary guardian and a new hearing at which the AIP is afforded an opportunity to be present.
After multiple failed attempts to personally serve the AIP, the AIP was properly served with process by alternate means pursuant to court order (MHL § 81.07[e][2][i]). The order to show cause seeking the appointment of a guardian over the AIP and setting a hearing date was also served upon the AIP's court-appointed counsel.
At the hearing, which was on for the first time on March 12, 2015, the AIP was not present. Although she had indicated to the court evaluator that she intended to appear at the hearing, she advised her counsel at the last minute that she was not feeling well. Supreme Court conducted the hearing in the AIP's absence, finding that the AIP had notice of the hearing and that she had "waived" her attendance at the hearing.
MHL § 81.11(c) provides that a hearing to determine whether the appointment of a guardian is necessary for an AIP "must be conducted in the presence of the person alleged to be incapacitated," including at the AIP's place of residence if necessary. There is an "overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated
person" (Matter of Levy v Davis, 302 Ad2d 309, 312 [1st Dept 2003]; see also Matter of Lillian U., 66 AD3d 1219 [3rd Dept 2009]). Accordingly, we remand the matter for a hearing at which the AIP should be afforded an opportunity to be present.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 14, 2016
CLERK


