Opinion
No. 4106/2015.
02-16-2016
In the Matter of an Application for the Appointment of a Guardian by K.B., Petitioner, For D.B., a Person Alleged to be Incapacitated.
Josephine S. Benton, Esq., Rosedale, Attorney for Petitioner. Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service Poughkeepsie, Attorneys for Respondent. Michelle McSweeney, Esq., Flushing, for Guardian Ad Litem.
Josephine S. Benton, Esq., Rosedale, Attorney for Petitioner.
Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service Poughkeepsie, Attorneys for Respondent.
Michelle McSweeney, Esq., Flushing, for Guardian Ad Litem.
JAMES D. PAGONES, J.
Respondent D.B. moves for an order, pursuant to CPLR 3211(a)(7) and CPLR 3212, dismissing the petition. Respondent also seeks an award of costs, fees and expenses.
The following papers were read:
| Notice of Motion–Affidavit–Affirmation–Affidavit of Service | 1–4 |
| Affidavit in Opposition(2)Cross–Motion/Affirmation1–Affirmation of Service | 5–8 |
Mental Hygiene Law § 81.08(a)(3) requires that the petition in a guardianship proceeding shall contain “a description of the alleged incapacitated person's functional level including that person's ability to manage the activities of daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living.” This section further mandates that the petition contain specific factual allegations as to the personal actions (personal need guardian) or financial transactions (property need guardian) or other actual occurrences that demonstrate that the alleged incapacitated person is likely to suffer harm because he cannot adequately understand and appreciate the inability to care for these needs (MHL §§ 81.08[a][4] and [5 ]; In re Meisels, 10 Misc.3d 659, 807 N.Y.S.2d 268 [Sup Ct, Kings County 2005] ). Conclusory allegations without specific factual allegations of an incapacity are insufficient and warrant a dismissal (In re Meisels, 10 Misc.3d 659, 807 N.Y.S.2d 268 [Sup Ct, Kings County 2005] citing Matter of Petty, 256 A.D.2d 281, 682 N.Y.S.2d 183 [1st Dept 1998] ). The failure to supply meaningful detailed information and supporting facts in a petition for a guardian, as required by statute are grounds for dismissal of the petition (Matter of Parker, 162 Misc.2d 733, 619 N.Y.S.2d 238 [Sup Ct, Onondaga County 1994] ).
The petitioner has failed to provide the type of detailed information contemplated by MHL § 81.08. The petition does not set forth any meaningful facts pertaining to the respondent's functional level. The only information contained within the petition is the opinion of the petitioner that the respondent:
“does not have the physical or mental ability to manage her role in the divorce action and property, and having suffered from mental illness earlier in her life and cannot understand the nature and consequences of such inability. The AIP does not have the physical or mental ability to obtain, administer, protect and dispose of real or personal property, intangible property, benefits or income. In addition, she does not have the ability to budget or allocate resources for herself or her family, nor does she have the ability to direct others to do the same on her behalf. She has no knowledge of her existing debts, her bank account balances, income or her resources.”
The petition contains no medical information concerning the alleged mental illness suffered by the respondent earlier in life and its relevance to her current property management powers. Nor does the petition elicit specific factual allegations as to the personal actions or financial transactions of the alleged incapacitated respondent which would illustrate that she is likely to suffer harm because of her inability to adequately understand and appreciate the nature of her actions (see MHL § 81.08[4] and [5 ]; Matter of Parker, 162 Misc.2d 733, 619 N.Y.S.2d 238 [Sup Ct, Onondaga County 1994] ).
The instant petition does not meet the essential requirements of MHL § 81.08 ; therefore, the respondent's motion to dismiss, pursuant to CPLR 3211(a)(7), is granted and the petition is dismissed. To the extent that the respondent seeks costs/fees associated with the making of this motion, that branch of the motion is denied.
This constitutes the decision and order of this Court.