You are here: / / Insufficient Evidence of Incapacity—Appointment of Guardian Reve...

Insufficient Evidence of Incapacity—Appointment of Guardian Reversed

The Second Department, reversing Supreme Court, determined there was insufficient evidence to support the finding that the allegedly incapacitated person (AIP) was in fact incapacitated:

In order for a court to exercise its authority to appoint a personal needs guardian, it must make a two-pronged determination (see Mental Hygiene Law § 81.02[a]…). First, the court must determine that “the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety” (Mental Hygiene Law § 81.02[a][1]). Second, the court must determine “that the person agrees to the appointment, or that the person is incapacitated” (Mental Hygiene Law § 81.02[a][2]).

With respect to the second prong, “[t]he determination of incapacity . . . shall consist of a determination that a person is likely to suffer harm because” (1) “the person is unable to provide for [his or her] personal needs” and (2) “the person cannot adequately understand and appreciate the nature and consequences of such inability” (Mental Hygiene Law §§ 81.02[b][1], [2]). In reaching its determination as to whether an individual is incapacitated, the court is required to “give primary consideration to the functional level and functional limitations of the person” (Mental Hygiene Law § 81.02[c]).

“A determination that a person is incapacitated . . . must be based on clear and convincing evidence” (Mental Hygiene Law § 81.12[a]; see Mental Hygiene Law § 81.02[b]). “The burden of proof shall be on the petitioner” (Mental Hygiene Law § 81.12[a]…).

Here, the petitioner failed to demonstrate, by clear and convincing evidence, that the AIP is incapacitated (see Mental Hygiene Law § 81.02[b]…). The testimony presented by the petitioner at the hearing failed to show that the AIP was unable to provide for his personal needs and that he was unable to adequately understand and appreciate the nature and consequences of any such inability … . The Supreme Court’s conclusion that the AIP “suffers from dementia” was not supported by the record. The petitioner’s medical expert testified that the AIP had not “evidenced . . . dementia” and was “capable of impressive cognitive functioning” … . Matter of Edward S. (Georgis-Corey), 2015 NY Slip Op 06351, 2nd Dept 7-29-15

 

You might also like
Six-Year Delay in Raising Attorney’s Conflict of Interest Waived the Objection​
Although the Doctor Was Employed by the Hospital, His Employment Did Not Encompass His Medical Practice—Therefore the Hospital Was Not Liable for the Doctor’s Medical Malpractice Under the Doctrine of Respondeat Superior/$6.8 Million Verdict Against the Doctors Based Upon a Delay in Diagnosing Cancer Should Not Have Been Set Aside
PLAINTIFF, A DEVELOPMENTALLY DISABLED STUDENT, WAS KNOCKED OVER BY ANOTHER STUDENT; THE DEFENDANT SCHOOL HAS A DUTY TO PROPERLY SUPERVISE ITS STUDENTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SCHOOL (THE YOUNG ADULT INSTITUTE, INC.) (SECOND DEPT).
THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT).
FAILURE TO INCLUDE ALL THE INFORMATION REQUIRED BY LIEN LAW 201 IN THE NOTICE OF SALE DID NOT WARRANT CANCELLATION OF THE LIENS (SECOND DEPT).
THE AFFIDAVIT SUBMITTED BY THE BANK TO PROVE STANDING TO FORECLOSE LAID AN ADEQUATE FOUNDATION FOR THE RELEVANT BUSINESS RECORDS BUT THE RECORDS THEMSELVES WERE NOT SUBMITTED, RENDERING THE AFFIDAVIT HEARSAY; THE BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISION OF THE MORTGAGE, A CONDITION PRECEDENT (SECOND DEPT).
EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT YEARS BEFORE FILING FOR BANKRUPTCY, THE BANKRUPTCY TOLLED THE FORECLOSURE STATUTE OF LIMITATIONS FOR THE ACTION AGAINST THE DEBTOR; THE TOLL DID NOT APPLY TO THE ACTION AGAINST THE NON-DEBTOR WHICH NEVER FILED FOR BANKRUPTCY (SECOND DEPT).
COUNTERCLAIMS FOR CONTRIBUTION AND INDEMNIFICATION BASED UPON NEGLIGENT SUPERVISION OF THE INJURED CHILD ARE NOT PROPER IN A PRODUCTS LIABILITY ACTION (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Petition for Late Approval (Eight Years Late) of a Settlement of a Third-Party... Only Documents Relevant to the Order/Judgment Appealed from Should Be in the...