Matter of K.B. (D.B.)

[*1] Matter of K.B. (D.B.) 2016 NY Slip Op 50161(U) Decided on February 16, 2016 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 16, 2016
Supreme Court, Dutchess County

In the Matter of an Application for the Appointment of a Guardian by K.B., Petitioner,

against

FOR D.B., A Person Alleged to be Incapacitated.



4106/2015



JOSEPHINE S. BENTON, ESQ.

Attorney for Petitioner

254-17 Memphis Avenue

Rosedale, New York 11422

EUGENIA BRENNAN HESLIN, ESQ.

MENTAL HYGIENE LEGAL SERVICE

Attorneys for Respondent

One Civic Center Plaza, Suite 304

Poughkeepsie, New York 12601

MICHELLE MCSWEENEY, ESQ.

Guardian Ad Litem

33-11 167th Street

Flushing, New York 11358
James D. Pagones, J.

Respondent D.B. moves for an order, pursuant to CPLR 3211(a)(7) and CPLR 3212, dismissing the petition. Respondent also seeks an award of costs, fees and expenses.

The following papers were read:

Notice of Motion-Affidavit-Affirmation-1-4

Affidavit of Service

Affidavit in Opposition(2)-Cross-Motion/Affirmation[FN1] -5-8

Affirmation of Service

Reply Affirmation-Exhibit A-Affidavit of Service9-11

Reply Affirmation-Affidavit of Service12-13

Notice of Article 81 Proceeding and Order to14-15

Show Cause-Verified Petition

Mental Hygiene Law §81.08(a)(3) requires that the petition in a guardianship proceeding shall contain "a description of the alleged incapacitated person's functional level including that person's ability to manage the activities of daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living." This section further mandates that the petition contain specific factual allegations as to the personal actions (personal need guardian) or financial transactions (property need guardian) or other actual occurrences that demonstrate that the alleged incapacitated person is likely to suffer harm because he cannot adequately understand and appreciate the inability to care for these needs (MHL §§81.08[a][4] and [5]; In re Meisels, 10 Misc 3d 659 [Sup Ct, Kings County 2005]). Conclusory allegations without specific factual allegations of an incapacity are insufficient and warrant a dismissal (In re Meisels, 10 Misc 3d 659 [Sup Ct, Kings County 2005] citing Matter of Petty, 256 AD2d 281 [1st Dept 1998]). The failure to supply meaningful detailed information and supporting facts in a petition for a guardian, as required by statute are grounds for dismissal of the petition (Matter of Parker, 162 Misc 2d 733 [Sup Ct, Onondaga County 1994]).

The petitioner has failed to provide the type of detailed information contemplated by MHL §81.08. The petition does not set forth any meaningful facts pertaining to the respondent's functional level. The only information contained within the petition is the opinion of the petitioner that the respondent:

"does not have the physical or mental ability to manage her role in the divorce action and property, and having suffered from mental illness earlier in her life and cannot understand the nature and consequences of such inability. The AIP does not have the physical or mental ability to obtain, administer, protect and dispose of real or personal [*2]property, intangible property, benefits or income. In addition, she does not have the ability to budget or allocate resources for herself or her family, nor does she have the ability to direct others to do the same on her behalf. She has no knowledge of her existing debts, her bank account balances, income or her resources."

The petition contains no medical information concerning the alleged mental illness suffered by the respondent earlier in life and its relevance to her current property management powers. Nor does the petition elicit specific factual allegations as to the personal actions or financial transactions of the alleged incapacitated respondent which would illustrate that she is likely to suffer harm because of her inability to adequately understand and appreciate the nature of her actions (see MHL §81.08 [4] and [5]; Matter of Parker, 162 Misc 2d 733 [Sup Ct, Onondaga County 1994]).

The instant petition does not meet the essential requirements of MHL §81.08; therefore, the respondent's motion to dismiss, pursuant to CPLR 3211(a)(7), is granted and the petition is dismissed. To the extent that the respondent seeks costs/fees associated with the making of this motion, that branch of the motion is denied.

This constitutes the decision and order of this Court.

Dated:February 16, 2016

Poughkeepsie, New York

ENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.

Footnotes

Footnote 1: The document entitled cross-motion was not noticed as required by CPLR 2215, nor was a fee paid to the Dutchess County Clerk. Accordingly, the cross-motion was considered solely as opposition.