Opinion
No. 2021-08415 Index No. 85080/21
12-18-2024
In the Matter of Nima B. R. (Anonymous), appellant. Gail Rae-Garwood, respondent.
Mental Hygiene Legal Service, Garden City, NY (Michael D. Neville, Felicia B. Rosen, and Dennis B. Feld of counsel), for appellant. Borrell & Riso, LLP, Staten Island, NY (Jeffrey F. G. Borrell of counsel), for respondent.
Mental Hygiene Legal Service, Garden City, NY (Michael D. Neville, Felicia B. Rosen, and Dennis B. Feld of counsel), for appellant.
Borrell & Riso, LLP, Staten Island, NY (Jeffrey F. G. Borrell of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. CHERYL E. CHAMBERS CARL J. LANDICINO LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of Nima B. R., an alleged incapacitated person, Nima B. R. appeals from an order and judgment (one paper) of the Supreme Court, Richmond County (Lizette Colon, J.), dated November 1, 2021. The order and judgment, after a hearing, granted the petition.
ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for a new hearing at which Nima B. R. is afforded an opportunity to be present and a new determination thereafter.
The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of her adult daughter Nima B. R., an alleged incapacitated person (hereinafter the AIP). At a hearing on the petition, which was conducted virtually due to the COVID-19 pandemic, the AIP was not present. Although the AIP had indicated to her counsel that she intended to appear, she advised her counsel that she was not feeling well and needed an extra hour to get to the courthouse, and subsequently advised her counsel that she did not feel well and would not be attending. The Supreme Court conducted the hearing in the AIP's absence, finding that she had "voluntarily absented herself" and noting that she was represented by counsel, had no burden of proof, and was not required to testify. After the hearing, in an order and judgment dated November 1, 2021, the court granted the petition. The AIP appeals.
Guardianship proceedings, as a drastic intervention in a person's liberty, must adhere to proper procedural standards (see Matter of Gordon [Green], 189 A.D.3d 408, 409). Mental Hygiene Law § 81.11(c) provides that a hearing to determine whether the appointment of a guardian is necessary for an alleged incapacitated person "must be conducted in the presence of the person alleged to be incapacitated," including at the alleged incapacitated person's place of residence if necessary (see Matter of Banks [Gwendolyn R.], 138 A.D.3d 519, 520; Matter of Gulizar N.O. [Rudy O.], 111 A.D.3d 749, 750; Matter of Lillian U., 66 A.D.3d 1219, 1220; cf. Matter of Rachel Z. [Jack Z.-Anna B.], 181 A.D.3d 805, 806). "There is an 'overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person'" (Matter of Banks [Gwendolyn R.], 138 A.D.3d at 520, quoting Matter of Levy v Davis, 302 A.D.2d 309, 312). Accordingly, we remit the matter to the Supreme Court, Richmond County, for a new hearing at which the AIP shall be afforded an opportunity to be present and a new determination thereafter. Pending such hearing and determination, the status quo shall remain the same (see Matter of Joseph J.D. [Elizabeth L.D.-Robert B.D.], 229 A.D.3d 104, 115; Matter of Lillian U., 66 A.D.3d at 1220).
The AIP's remaining contentions have been rendered academic in light of our determination.
BRATHWAITE NELSON, J.P., CHAMBERS, LANDICINO and LOVE, JJ., concur.|