                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 7, 2016                      521844
________________________________

In the Matter of ARTHUR R.
   JOHNSON, Commissioner of
   Social Services of Broome
   County, as Guardian for
   JUANITA P., an Incapacitated
   Person,                                  MEMORANDUM AND ORDER
                    Appellant,
      v

FRANK BUONO,
                    Respondent.
________________________________


Calendar Date:   May 27, 2016

Before:   McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.

                             __________


      Arthur R. Johnson, Broome County Department of Social
Services, Binghamton (Philomena M. Stamato of counsel), for
appellant.

      Sheila Shea, Mental Hygiene Legal Service, Albany, for
respondent.

                             __________


Aarons, J.

      Appeal from an order of the Supreme Court (Guy, J.),
entered May 26, 2015 in Broome County, which, in a proceeding
pursuant to Mental Hygiene Law article 81, among other things,
awarded a money judgment to respondent on his counterclaim.
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      In August 2014, petitioner was appointed guardian of the
person and property of Juanita P., an incapacitated person, in a
proceeding under Mental Hygiene Law article 81. Earlier in the
year, Juanita P. had rented an apartment from respondent that she
vacated before eventually being placed in a nursing home. In
December 2014, petitioner brought an application pursuant to
Mental Hygiene Law § 81.43 for the discovery of property
belonging to Juanita P. that was allegedly in respondent's
possession. Respondent served a "notice of answer and
counterclaim" seeking $3,263.03 for past due rent and damages to
the apartment. Thereafter, following a nonevidentiary hearing,
Supreme Court granted petitioner's application and ordered
respondent to turn over petitioner's property, but also awarded
respondent a money judgment against Juanita P. in the amount of
$3,000 on his counterclaim. Petitioner now appeals.

      Mental Hygiene Law § 81.43 provides a mechanism by which a
guardian appointed in a Mental Hygiene Law article 81 proceeding
may fulfill his or her duties of identifying and protecting the
assets of an incapacitated person for that person's benefit (see
Mental Hygiene Law §§ 81.20 [6] [ii], [iv]; 81.43 [a]). It is
part of an overall statutory scheme that is remedial in nature
and designed to assist persons in taking action through a
representative that they could not otherwise take themselves
because of their incapacity (see Mental Hygiene Law § 81.01; see
generally Matter of Shah, 257 AD2d 275, 282 [1999], affd 95 NY2d
148 [2000]). Under Mental Hygiene Law § 81.43 (a), a guardian
may, by way of petition, bring an application to discover
property belonging to an incapacitated person that is being
withheld by a respondent and the court may conduct an inquiry of
the respondent to ascertain if such property is within his or her
control. The statute provides that the respondent may serve an
answer to the petition and that "[a]ny claim of title to or right
to the possession of any property of the incapacitated person
must be made by verified answer in writing" (Mental Hygiene Law
§ 81.43 [b]). It further states that, "[i]f such answer is
interposed, the issues raised thereby shall be tried according to
the usual practice of the court as a litigated issue" (Mental
Hygiene Law § 81.43 [b]).
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      Here, although respondent claimed a right to Juanita P.'s
property as an offset to past due rent and damages to the
apartment, he did not serve a verified answer as required by
statute (see Mental Hygiene Law § 81.43 [b]). More
significantly, Supreme Court did not treat the claim as a
litigated issue as it failed to hear any testimony related to the
claim or receive any documentary evidence substantiating the
amount of respondent's damages. While Supreme Court correctly
noted to respondent that his avenue of recourse would be to
commence a separate action at law and, in fact, granted
respondent permission to do so, Supreme Court inexplicably, and
contrary to what it stated to the parties at the hearing, awarded
a money judgment in favor of respondent. Based on the foregoing,
this was error, and that part of the order that awarded a money
judgment in favor of respondent must be reversed.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded a money judgment
to respondent against Juanita P. in the amount of $3,000 on his
counterclaim, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
