Opinion
14298 Index No. 500090/16 Case No. 2019-05117
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.
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.
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, 141 N.Y.S.3d 358 [2d Dept. 2021] ; Matter of Deborah P. [Marie F.], 133 A.D.3d 602, 603–604, 18 N.Y.S.3d 710 [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, 742 N.Y.S.2d 336 [2d Dept. 2002] ; see generally Matter of Grinker [Rose], 77 N.Y.2d 703, 570 N.Y.S.2d 448, 573 N.E.2d 536 [1991] ).
"Similarly, proof of mental illness alone does not establish incapacity" ( Matter of Banks [Richard A.], 64 Misc.3d 191, 199, 100 N.Y.S.3d 818 [Sup. Ct., N.Y. County 2019, Wan, J.] ; see Rivers v. Katz, 67 N.Y.2d 485, 494, 504 N.Y.S.2d 74, 495 N.E.2d 337 [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, 77 N.Y.S.3d 872 [2d Dept. 2018] ; see also Matter of Deborah P., 133 A.D.3d at 604, 18 N.Y.S.3d 710 ; see generally Matter of Raphael R. [Lopez], 168 A.D.3d 947, 948, 92 N.Y.S.3d 417 [2d Dept. 2019] ).
We have considered Selfhelp's remaining arguments and find them unavailing.