Opinion
1141 CA 18–01987
12-20-2019
In the MATTER OF the APPLICATION OF JON Z. and Victor Z. for the Appointment of a Guardian of the Property and/or Person of Margaret Z., an Alleged Incapacitated Person. Jon Z., Petitioner–Appellant; v. Theresa M. Girouard, Esq., Appointed Guardian for Margaret Z., an Alleged Incapacitated Person, Respondent–Respondent. (Appeal No. 1.)
JON Z., PETITIONER–APPELLANT PRO SE. SCHMITT & LASCURETTES, LLC, UTICA (WILLIAM P. SCHMITT OF COUNSEL), FOR RESPONDENT–RESPONDENT.
JON Z., PETITIONER–APPELLANT PRO SE.
SCHMITT & LASCURETTES, LLC, UTICA (WILLIAM P. SCHMITT OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this guardianship proceeding, petitioner appeals from three orders of Supreme Court. In appeal No. 1, the court granted that part of respondent's motion seeking payment for her services as the guardian of petitioner's incapacitated mother. In appeal No. 2, the court granted that part of respondent's motion seeking payment to a nursing home for services rendered to the mother. In appeal No. 3, the court denied petitioner's motion pursuant to CPLR 5015(a)(3) to vacate a prior order of the court, which had denied petitioner's prior motion for, among other relief, removal of respondent as guardian.
As an initial matter, we note that our review on these appeals is limited to the record on appeal as settled by the court (see generally Matter of Salder v. Wahl , 227 A.D.2d 995, 995, 643 N.Y.S.2d 823 [4th Dept. 1996] ). Petitioner's self-titled "Complete Record" is not properly before us (see 22 NYCRR 1250.7 [g][3] ).
With respect to appeal Nos. 1 and 2, we note that petitioner does not specifically challenge the amount requested by respondent for her fees or the amount due to the nursing home. Instead, petitioner contends that neither respondent nor the nursing home should receive the requested amounts because respondent engaged in fraud and was wasting the mother's assets. In his opposition to respondent's motion, however, petitioner offered no evidence of fraud aside from his conclusory statements, which are insufficient to establish either fraud or the unreasonableness of the requested amounts (see generally Matter of Helen [H.]O. v. Mark L.O. , 281 A.D.2d 937, 938, 722 N.Y.S.2d 206 [4th Dept. 2001], lv denied in part and dismissed in part 98 N.Y.2d 666, 746 N.Y.S.2d 452, 774 N.E.2d 217 [2002] ; Matter of Coniglio , 242 A.D.2d 901, 902, 663 N.Y.S.2d 456 [4th Dept. 1997] ). Further, the record contains undisputed invoices from the nursing home regarding the services provided to the mother during the relevant time frame. We therefore conclude that the court properly granted that part of respondent's motion seeking payment for those services. Likewise, the court properly granted that part of respondent's motion seeking an award of her fees, which were supported by itemized records (see generally Matter of Goldstein v. Zabel , 146 A.D.3d 624, 630–631, 45 N.Y.S.3d 432 [1st Dept. 2017], lv denied 29 N.Y.3d 918, 2017 WL 4015038 [2017] ; Matter of Joshua H. [Grace N.] , 80 A.D.3d 698, 699, 914 N.Y.S.2d 914 [2d Dept. 2011], lv denied 16 N.Y.3d 711, 2011 WL 1643288 [2011] ).
With respect to appeal No. 3, we reject petitioner's contention that the court's prior order should be vacated on the ground that it was procured by fraudulent means (see CPLR 5015[a][3] ) inasmuch as petitioner's broad, unsubstantiated allegations did not entitle him to such relief (see Miller v. Lanzisera , 273 A.D.2d 866, 868, 709 N.Y.S.2d 286 [4th Dept. 2000], appeal dismissed 95 N.Y.2d 887, 715 N.Y.S.2d 378, 738 N.E.2d 782 [2000], reconsideration denied 96 N.Y.2d 731, 722 N.Y.S.2d 797, 745 N.E.2d 1019 [2001] ; see generally Abbott v. Crown Mill Restoration Dev., LLC , 109 A.D.3d 1097, 1100, 972 N.Y.S.2d 117 [4th Dept. 2013] ).
Petitioner's remaining contentions regarding the sale of certain real property are not properly before us on these appeals (see generally Matter of Bullard v. Bullard , 185 A.D.2d 411, 412, 585 N.Y.S.2d 616 n [3d Dept. 1992] ; Matter of Bligen v. Kelly , 126 A.D.2d 989, 989, 511 N.Y.S.2d 985 [4th Dept. 1987] ).