Opinion
December 30, 1996.
Amended order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Supreme Court lacked authority to direct respondents to pay a portion of the court evaluator's allowance awarded by the court. Pursuant to Mental Hygiene Law § 81.09 (f), where, as here, the petition seeking the appointment of a guardian pursuant to article 81 of the Mental Hygiene Law is denied or dismissed, "the court may award a reasonable allowance to a court evaluator * * * payable by the petitioner[s] or by the person alleged to be incapacitated, or both in such proportions as the court may deem just." Therefore, we vacate that part of the amended order directing payment of the allowance to the court evaluator and remit the matter to Supreme Court to determine whether petitioners, Jessie M. Geer, or both, must pay the reasonable allowance awarded to the court evaluator pursuant to the foregoing statute.
In all other respects, we affirm the amended order for reasons stated in the decision at Supreme Court (Smith, J.). (Appeals from Amended Order of Supreme Court, Livingston County, Smith, J."Mental Hygiene Law.)