Opinion
2012-10-17
In the Matter of LISA D. (Anonymous). Peter Smergut, etc., respondent; Consumer Advisory Board, et al., appellants.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and Leslie B. Dubeck of counsel), for appellants. Robert Rosenthal, New York, N.Y., and Clifford Mierowitz, New York, N.Y., for respondent (one brief filed).
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard Dearing and Leslie B. Dubeck of counsel), for appellants. Robert Rosenthal, New York, N.Y., and Clifford Mierowitz, New York, N.Y., for respondent (one brief filed).
In a proceeding pursuant to Mental Hygiene Law article 81, inter alia, to appoint a guardian for the property of Lisa D., an alleged incapacitated person, the nonparty New York State Office for People with Developmental Disabilities, and the cross petitioner, Consumer Advisory Board, appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Diamond, J.), dated April 7, 2011, which, upon a decision of the same court dated March 1, 2011, made after a hearing, among other things, appointed a guardian for the property management of Lisa D., authorized the guardian, as directed by the court, to transfer certain funds belonging to Lisa D. to a trust account to be established for the benefit of Lisa D., and directed the trustee of the subject trust to pay from the funds of Lisa D. a sum certain to the petitioner's counsel for legal services rendered as the attorney for the petitioner.
ORDERED that the order and judgment is affirmed, without costs or disbursements.
Contrary to the appellants' contentions, the Supreme Court providently exercised its discretion, in the best interests of the subject alleged incapacitated person, Lisa D. ( see Matter of Nimon, 15 A.D.3d 978, 979, 789 N.Y.S.2d 596;Matter of Rudick, 278 A.D.2d 328, 329, 718 N.Y.S.2d 202;see also Mental Hygiene Law § 81.01), by appointing one of her siblings as guardian for her property management and by authorizing that guardian to transfer certain of Lisa D.'s funds to a trust account to be established for Lisa D.'s benefit in a certain pooled trust established by her residential services provider ( see Mental Hygiene Law § 81.02[a][1], [2]; § 81.19[d]; see also Matter of Margaret K., 17 A.D.3d 466, 466, 792 N.Y.S.2d 350;cf. DiGennaro v. Community Hosp. of Glen Cove, 204 A.D.2d 259, 260, 611 N.Y.S.2d 591). Also contrary to the appellants' contention, the foregoing arrangement does not violate Mental Hygiene Law § 81.19(e)(1) or (2) ( cf. Matter of Patrick BB., 284 A.D.2d 636, 638–639, 725 N.Y.S.2d 731).
The Supreme Court providently exercised its discretion in awarding a sum certain to the petitioner's counsel for legal services rendered as the attorney for the petitioner, to be paid from Lisa D.'s funds (see Mental Hygiene Law § 81.16[f]; Matter of Grace PP., 245 A.D.2d 824, 825, 666 N.Y.S.2d 793).