You are here: / / Article 81 Guardianship Hearing Should Not Have Been Held in the Absence...

Article 81 Guardianship Hearing Should Not Have Been Held in the Absence of the Alleged Incapacitated Person; Counsel Should Have Been Appointed for the Alleged Incapacitated Person

The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person.  The court further held counsel should have been appointed for the alleged incapacitated person:

The Supreme Court erred in conducting a hearing in the appellant’s absence. There was no evidence presented at the hearing that the appellant was unable to be present in court, that she was unable to participate in the hearing, or that no meaningful participation would result from her presence … . Furthermore, the court failed to set forth in the resulting order and judgment of appointment a sufficient factual basis for conducting the hearing without the appellant being present (see Mental Hygiene Law § 81.11[d]…).

Moreover, since there was no evidence that the appellant made an informed decision to refuse the assistance of counsel, the Supreme Court should have appointed counsel to represent her… Matter of Gulizar NO (Rudy O), 2013 NY Slip Op 07489, 2nd Dept 11-13-13

 

You might also like
Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings
ONCE PLAINTIFF’S FORECLOSURE ACTION WAS DISCONTINUED BY STIPULATION, THE FORECLOSURE COMPLAINT COULD BE AMENDED TO SEEK RECOVERY ON THE NOTE (SECOND DEPT).
HEARSAY STATEMENTS BY THE ONLY WITNESS TO IDENTIFY DEFENDANT AS A PERPETRATOR INDICATED THE WITNESS WAS NOT IN FACT ABLE TO IDENTIFY ANY OF THE PERPETRATORS; THE INCONSISTENT STATEMENTS SHOULD HAVE BEEN ADMITTED BECAUSE THEY WENT TO A CORE ISSUE IN THE CASE IMPLICATING THE RIGHT TO PUT ON A DEFENSE; CONVICTION REVERSED (SECOND DEPT).
COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT).
PRIMA FACIE CASE OF NEGLECT REBUTTED BY MOTHER’S EXPERT.
Breach of Contract Action Against School District Untimely—Notice of Claim Required by Education Law 3813 Not Filed Within Three Months of the Accrual of the Claim
DEFENDANT, ALTHOUGH CONVICTED OF AN ARMED FELONY, SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS, CRITERIA EXPLAINED (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Statutory Requirements for Recovery and Limits Imposed by Subrogation Explained;... Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did...