Opinion
2013-11-15
SUNRISE NURSING HOME, INC., Plaintiff, v. Marion FERRIS, Also Known as Marion Wallis, et al., Defendants, and Stanley Ferris, Individually and as Power of Attorney for Marion Ferris, also Known as Marion Wallis, Defendant–Appellant. Gloria Flores Baldwin, as Guardian ad Litem for Marion Ferris, also Known as Marion Wallis, Respondent. (Appeal No. 1.).
Finocchio & English, Syracuse (Vincent J. Finocchio, Jr., of Counsel), for Defendant–Appellant. Gloria Flores Baldwin, Baldwinsville, Respondent pro se.
Finocchio & English, Syracuse (Vincent J. Finocchio, Jr., of Counsel), for Defendant–Appellant. Gloria Flores Baldwin, Baldwinsville, Respondent pro se.
Present: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, Stanley Ferris (defendant), individually and as power of attorney for his wife, defendant Marion Ferris, also known as Marion Wallis, appeals from an order granting the application of respondent, the guardian ad litem for Marion, for an interim award of fees. In appeal No. 2, defendant, individually, appeals from an order denying that part of his motion to dismiss the sixth cause of action based on plaintiff's failure to state a cause of action ( seeCPLR 3211[a][7] ), and from those parts of his purported motion to dismiss the first and second causes of action, which we note were asserted only against Marion, as well as the seventh cause of action against him, based on plaintiff's lack of legal capacity to sue (see CPLR 3211[a][3] ).
Contrary to defendant's contention in appeal No. 1, Supreme Court had the authority to make an interim award of fees to the guardian ad litem ( see generallyCPLR 1204; Haynes v. Haynes, 200 A.D.2d 457, 457, 606 N.Y.S.2d 631, affd. 83 N.Y.2d 954, 615 N.Y.S.2d 863, 639 N.E.2d 402; Matter of Infant X. v. Children's Hosp. of Buffalo, 197 A.D.2d 884, 884, 602 N.Y.S.2d 483). Moreover, we conclude that the court did not abuse its discretion with respect to the amount of the award in view of the guardian ad litem's efforts in the case ( see Matter of Reitano, 89 A.D.3d 535, 535–536, 933 N.Y.S.2d 220, appeal dismissed sub nom. Cangro v. Marangos, 18 N.Y.3d 985, 945 N.Y.S.2d 633, 968 N.E.2d 987, reconsideration denied19 N.Y.3d 992, 951 N.Y.S.2d 107, 975 N.E.2d 488; see also Haynes, 83 N.Y.2d at 957, 615 N.Y.S.2d 863, 639 N.E.2d 402), or with respect to its apportionment of the award among the parties ( see Matter of HSBC Bank USA, N.A. [Knox], 98 A.D.3d 300, 322–323, 947 N.Y.S.2d 292, lv. denied20 N.Y.3d 860, 961 N.Y.S.2d 834, 985 N.E.2d 430). We therefore affirm the order in appeal No. 1. Finally, we decline to impose sanctions against appellate counsel for defendant, as power of attorney, as urged by the guardian ad litem in appeal No. 1 ( see generally Matter of Gademsky v. Masset, 213 A.D.2d 1082, 1082, 625 N.Y.S.2d 973).
We note at the outset with respect to appeal No. 2 that the first and second causes of action, corresponding to the first and second ordering paragraphs of the order on appeal, have been discontinued pursuant to a stipulation, and thus any contentions with respect to those causes of action or ordering paragraphs are moot ( see Virella v. Allstate Home Care of Buffalo, Inc., 59 A.D.3d 1100, 1101, 872 N.Y.S.2d 611). As now relevant in appeal No. 2, defendant contends that the court erred in failing to grant his motion with respect to the sixth and seventh causes of action. We conclude, however, that defendant did not move to dismiss the seventh cause of action, nor indeed did he seek dismissal of the third and eighth causes of action. Thus, the court's consideration of those causes of action was improper ( see generally Cottone v. Selective Surfaces, Inc., 68 A.D.3d 1038, 1038–1039, 892 N.Y.S.2d 466), and any contention by defendant on appeal with respect to them is not properly before us. We therefore modify the order in appeal No. 2 by vacating the third, seventh, and eighth ordering paragraphs ( see County of Oneida v. Estate of Kennedy, 300 A.D.2d 1091, 1092, 751 N.Y.S.2d 807). We note in particular that, because defendant did not move against those causes of action, he should not be precluded from subsequently doing so ( seeCPLR 3211[e] ).
Contrary to the contention of defendant, individually, in appeal No. 2, plaintiff's sixth cause of action properly asserts a cause of action for necessaries against him in his individual capacity ( see generally Medical Bus. Assoc. v. Steiner, 183 A.D.2d 86, 90–91, 588 N.Y.S.2d 890), and we thus conclude that the court properly denied that part of the motion seeking to dismiss that cause of action.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.