You are here: / / PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE...
, , , , ,

PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE THE CAPACITY TO EXECUTE A DOCUMENT DESIGNATING RESPONDENT AS HER AGENT TO CONTROL THE DISPOSITION OF HER REMAINS; PETITIONER SUBMITTED PROOF HIS MOTHER HAD BEEN DIAGNOSED WITH DEMENTIA, BUT DEMENTIA IS NOT THE EQUIVALENT OF INCOMPETENCE OR INCAPACITY; THE PETITION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, held that the petition pursuant to Public Health Law 4201 for a determination concerning the disposition of petitioner’s deceased mother’s remains should have been dismissed. The deceased was also the mother of the respondent in this action. The issue was whether the deceased had the capacity to execute a document designating the respondent as her agent to control the disposition of her remains. The proceeding under the Public Health Law is handled like a motion for summary judgment. Although petitioner demonstrated his mother was diagnosed with dementia in 2014, dementia is not the equivalent of incompetence:

Every dispute relating to the disposition of the remains of a decedent shall be resolved . . . pursuant to a special proceeding” (Public Health Law § 4201 [8]). Upon the return date of the petition in a special proceeding, “[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,” and “may make any orders permitted on a motion for summary judgment” (CPLR 409 [b] …). “[E]very hearing of a special proceeding is equivalent to the hearing of a motion for summary judgment” … . …

Even assuming, arguendo, that the heightened contractual capacity standard is applicable in this case … , we conclude that petitioner failed to establish that the decedent was incapable “of comprehending and understanding the nature of the transaction at issue” … .  Although petitioner submitted evidence establishing that the decedent had been diagnosed with dementia in 2014, “there is no presumption that a person suffering from dementia is wholly incompetent” … . “Rather, it must be demonstrated that, because of the affliction, the individual was incompetent at the time of the challenged transaction” … . Here, petitioner failed to set forth any evidence that the decedent was without capacity to execute the designating document in September 2017 … . Matter of Hurlbut v Leo M. Bean Funeral Home, Inc., 2022 NY Slip Op 04439, Fourth Dept 7-8-22

Practice Point: A proceeding pursuant to the Public Health Law to determine the disposition of the remains of a decedent is in the nature of a special proceeding and is handled like a summary judgment motion. Here the petitioner did not raise a question of fact about whether the decedent had the capacity to designate the respondent as her agent to control the disposition of her remains. Proof decedent had been diagnosed with dementia did not raise a question of fact about decedent’s competence or capacity.

 

You might also like
THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).
INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY.
Statements Made by Defendant During First 15 Hours of a 60-Hour Interrogation Not Coerced
IN THIS CHILD PORNOGRAPHY CASE, COMPELLING DEFENDANT TO UNLOCK THE CELL PHONE WITH HIS FINGERPRINT AMOUNTED TO TESTIMONIAL EVIDENCE THAT HE OWNED, CONTROLLED AND HAD ACCESS TO THE CONTENTS OF THE PHONE, A VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION; THE MOTION TO SUPPRESS THE TESTIMONIAL EVIDENCE AND THE CONTENTS OF THE PHONE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).
ALTHOUGH DEFENDANT WAS A VOLUNTEER AMBULANCE DRIVER AND WAS RESPONDING TO A CALL AT THE TIME OF THE TRAFFIC ACCIDENT, DEFENDANT WAS DRIVING HIS OWN PERSONAL PICKUP TRUCK, WHICH WAS NOT AN AUTHORIZED EMERGENCY VEHICLE; THEREFORE THE “RECKLESS DISREGARD” STANDARD OF CARE DID NOT APPLY TO DEFENDANT (FOURTH DEPT). ​
Scaffold, Safety Railing and Cross Braces Are Safety Devices
REAR-MOST DRIVER IN A CHAIN-REACTION ACCIDENT LIABLE TO PLAINTIFF WHO WAS IN THE LINE OF STOPPED CARS, REAR-MOST DRIVER NOT LIABLE FOR PLAINTIFF’S SUBSEQUENT INJURY WHEN HE WAS STRUCK BY ANOTHER DRIVER AFTER GETTING OUT OF HIS CAR (FOURTH 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

PLAINTIFF’S FAILURE TO SCHEDULE A 50-H HEARING AFTER ADJOURNING IT TWICE... THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION...