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In re Banks

Supreme Court of New York, Appellate Division, First Department
Oct 5, 2021
No. 2021-05284 (N.Y. App. Div. Oct. 5, 2021)

Opinion

2021-05284 Index 500090/16

10-05-2021

In the Matter of Steven Banks, as the Commissioner of Social Services of the City of New York, Petitioner, For the Appointment of a Guardian of the Personal Needs and Property Management of Wilson C., a Person Alleged to be Incapacitated, Respondent-Appellant. Selfhelp Community Services, Inc., Nonparty-Respondent. Appeal No. 14298 No. 2019-05117

Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug of counsel), for appellant. The Law Offices of Jordi Fernandez, New York (Jordi Fernandez of counsel), for respondent.


Marvin Bernstein, Mental Hygiene Legal Service, New York (Margo Flug of counsel), for appellant.

The Law Offices of Jordi Fernandez, New York (Jordi Fernandez of counsel), for respondent.

Before: Webber, J.P., Singh, Scarpulla, Mendez, Rodriguez, JJ.

Order, Supreme Court, New York County (Lillian Wan, J.), entered on or about June 3, 2019, which, after a hearing, denied appellant's motion to terminate the guardianship of his personal needs and granted nonparty Selfhelp Community Services, Inc.'s (Selfhelp) cross motion, in effect, to re-adjudicate appellant to be an incapacitated person in need of a guardian to manage his property and be reappointed as the property management guardian, unanimously reversed, on the law, without costs, the motion granted, the cross motion denied, and the matter remitted for further proceedings consistent herewith.

On this record, Selfhelp failed to establish, by clear and convincing evidence, that appellant remains incapacitated so as to require guardianship over his personal needs and property management (see Mental Hygiene Law §§ 81.02, 81.36[d]; Law Rev Commn Comments, reprinted in McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.36; Matter of Carolyn S. [Gaylor], 192 A.D.3d 1114, 1115-1116 [2d Dept 2021]; Matter of Deborah P. [Marie F.], 133 A.D.3d 602, 603-604 [2d Dept 2015]).

Although Selfhelp made clear at the hearing that it does not believe that appellant can or will successfully defend himself in a pending landlord/tenant case, and may possibly face eviction as a result, "[a] precarious housing situation... do[es] not, without more, constitute proof of incapacity such that a guardian is warranted..." (Matter of David C., 294 A.D.2d 433, 434 [2d Dept 2002]; see generally Matter of Grinker [Rose], 77 N.Y.2d 703 [1991]).

"Similarly, proof of mental illness alone does not establish incapacity" (Matter of Banks [Richard A.], 64 Misc.3d 191, 199 [Sup Ct, NY County 2019, Wan, J.]; see Rivers v Katz, 67 N.Y.2d 485, 494 [1986]). Here, because Selfhelp offered scant, uncorroborated testimony as to appellant's present mental health, it failed to establish, by clear and convincing evidence, that its guardianship over appellant remained warranted (see Matter of Fritz G., 164 A.D.3d 503, 503-504 [2d Dept 2018]; see also Matter of Deborah P., 133 A.D.3d at 604; see generally Matter of Raphael R. [Lopez], 168 A.D.3d 947, 948 [2d Dept 2019]).

We have considered Selfhelp's remaining arguments and find them unavailing.


Summaries of

In re Banks

Supreme Court of New York, Appellate Division, First Department
Oct 5, 2021
No. 2021-05284 (N.Y. App. Div. Oct. 5, 2021)
Case details for

In re Banks

Case Details

Full title:In the Matter of Steven Banks, as the Commissioner of Social Services of…

Court:Supreme Court of New York, Appellate Division, First Department

Date published: Oct 5, 2021

Citations

No. 2021-05284 (N.Y. App. Div. Oct. 5, 2021)