2006 New York Code - Proceedings To Discover Property Withheld

 
  § 81.43 Proceedings to discover property withheld.
    (a)  To  the extent that it is consistent with the authority otherwise
  granted by the court a guardian may commence a proceeding in  the  court
  which appointed the guardian to discover property withheld. The petition
  shall  contain knowledge, or information and belief of any facts tending
  to show that any interest in real property or money  or  other  personal
  property,  or  the  proceeds or value thereof, which should be delivered
  and paid to the guardian, is in the possession, under  the  control,  or
  within the knowledge or information of respondent who withholds the same
  from  the  guardian,  whether  such  possession  or control was obtained
  before or after the appointment of the guardian, or that the  respondent
  refuses  to disclose knowledge or information which such person may have
  concerning the same or which will aid the guardian in  making  discovery
  of  such property. The petition shall request that respondent be ordered
  to attend an inquiry and be examined accordingly and deliver property of
  the incapacitated person if  it  is  within  his  or  her  control.  The
  petition  may  be accompanied by an affidavit or other written evidence,
  tending to support the allegations thereof. If the court is satisfied on
  the papers so presented  that  there  are  reasonable  grounds  for  the
  inquiry,  it  must  make  an  order accordingly, which may be returnable
  forthwith, or at a future time fixed by the court, and may be served  at
  any  time  before  the  hearing. If it shall appear from the petition or
  from the answer interposed thereto, or in the course of the inquiry made
  pursuant to the order that a person other than  the  respondent  in  the
  proceeding  claims  an  interest  in the property or the proceeds or the
  value thereof, the court may by the original order  or  by  supplemental
  order,  direct  such  additional  party to attend and be examined in the
  proceeding in respect of his or  her  adverse  claim,  and  deliver  the
  property  if  in  his  or  her control or the proceeds or value thereof.
  Service of such an order must be made by delivery of  a  certified  copy
  thereof  to  the  person  or  persons  named  therein and the payment or
  tender, to each of the sum required by law to be paid or tendered  to  a
  witness who is subpoenaed to attend a trial in such court.
    (b)  If  the  person  directed to appear submits an answer denying any
  knowledge concerning or the possession of any property which belongs  to
  the  incapacitated  person  or  should  be delivered to the guardian, or
  shall make default in answer, he or she shall be sworn to  answer  truly
  all  questions  put to him or her regarding the inquiry requested in the
  petition. Any claim of title to  or  right  to  the  possession  of  any
  property  of the incapacitated person must be made by verified answer in
  writing. If such answer is interposed, the issues raised  thereby  shall
  be  tried  according  to  the usual practice of the court as a litigated
  issue but the interposition of such answer shall not limit the right  of
  the  guardian  to proceed with the inquiry in respect of property not so
  claimed by the verified answer. If possession of the property is denied,
  proof on that issue may be presented to the court by either  party.  The
  court  may  in  an  appropriate  case make interim decrees directing the
  delivery of property not claimed by verified answer and may continue the
  proceeding for determination of any litigated issue. If it appears  that
  the  guardian  is entitled to the possession of the property, the decree
  shall direct delivery thereof to the guardian or if the  property  shall
  have  been diverted or disposed of, the decree may direct payment of the
  proceeds or the value of such property or may impress a trust upon  said
  proceeds  or make any determination which a court of equity might decree
  in following trust property funds. In  any  case  in  which  a  verified
  answer  is  served and the court after a trial or hearing determines the
  issue, the court may in its discretion award costs not  exceeding  fifty
  dollars and disbursements to be paid by the unsuccessful party.