In the Matter of Lillian

Decision Date17 April 2008
Docket NumberNo. 2005-1241,2005-1241
Citation20 Misc.3d 215,860 N.Y.S.2d 382,2008 NY Slip Op 28155
PartiesIn the Matter of the Appointment of a Guardian of the Person and Property of LILLIAN, an Alleged Incapacitated Person.
CourtSupreme Court of Delaware

Rusk, Wadlin, Heppner & Martuscello, LLP, Kingston (Jason J. Kovacs of counsel), for Lillian.

OPINION OF THE COURT

EUGENE E. PECKHAM, J.

This is a proceeding brought by the Delaware County Commissioner of Social Services by order to show cause filed on or about March 23, 2007 and signed by the court on April 2, 2007 to extend the Mental Hygiene Law article 81 guardianship of respondent.

In the answer to the order to show cause, the attorney appointed for respondent raises two defenses: (1) the court lacks personal jurisdiction of respondent, and (2) the court must hold a hearing on the extension of the guardianship in the presence of respondent.

Lillian was determined to be incapacitated and in need of a guardian in a previous proceeding before this court resulting in findings and judgment, dated March 7, 2006, appointing the Commissioner as guardian of respondent. That judgment provided for the duration of the guardianship to last until March 31, 2007 with leave to the Commissioner to reapply for an extension, which he has now done. (Transcript at 55-59.) The court will take judicial notice of the prior record and proceedings in this matter. (Matter of Magid v Gabel, 25 AD2d 649 [1st Dept 1966]; Fisch, New York Evidence § 1065, at 602 [2d ed].)

The original hearing in this matter was held on February 2, 2006 in the room of respondent at Fox Hospital, Oneonta, New York. At that time, the court heard testimony which it found clear and convincing that the respondent was incapacitated and in need of a guardian. (Mental Hygiene Law § 81.02.) The Delaware County Commissioner of Social Services was appointed as guardian of the person and property. Among the powers granted to the guardian was the power to choose the place of abode of the ward. (Mental Hygiene Law § 81.22 [a] [9].) In exercise of that authority the Commissioner transferred Lillian to Cedar Hill Health Care Center, Randolph, Massachusetts, where she continues to reside.

A guardian appointed pursuant to article 81 of the Mental Hygiene Law has no power to change the domicile of the incapacitated person without court authorization, even though power is given to change the place of abode. (Estate of Bauch, NYLJ, Jan. 8, 2004, at 20, col 3 [Sur Ct, Suffolk County]; Brown v Brown, 86 Misc 2d 71 [Sup Ct, Kings County 1976]; Matter of Webber, 187 Misc 674 [Sur Ct, Kings County 1946]; Matter of Kassler, 173 Misc 856 [Sup Ct, Queens County 1940].)

Since this court's order appointing the guardian gave only power to choose the ward's abode, but did not authorize a change of domicile, the respondent remains a domiciliary of Delaware County. Inasmuch as this proceeding for extension of the guardianship was authorized in the court's original order appointing the guardian and the respondent continues to be domiciled in Delaware County, the court continues to have personal jurisdiction of respondent. (Mental Hygiene Law § 81.04.) "[I]f a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of a State to bind him by every subsequent order in the cause." (Michigan Trust Co. v Ferry, 228 US 346, 353 [1913].)

Mental Hygiene Law § 81.11 (c) provides:

"(c) The hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides, so as to permit the court to obtain its own impression of the person's capacity. If the person alleged to be incapacitated physically cannot come or be brought to the courthouse, the hearing must be conducted where the person alleged to be incapacitated resides unless;

"1. the person is not present in the state."

Pursuant to this provision of the Mental Hygiene Law this court by order dated February 5, 2008 directed that a hearing on the order to show cause for extension of the guardianship proceed without the presence of respondent. A hearing was held on March 11, 2008 at which the attorney for respondent appeared. In an analogous situation it has been held that when the alleged incapacitated person refuses to participate in the hearing her presence can be waived by the court. (Matter of E.H., 13 Misc 3d 1233[A], 2006 NY Slip Op 52101[U] [Sup Ct, Bronx County 2006].) Similarly, under Mental...

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4 cases
  • In re Bonora
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Diciembre 2014
    ...123 A.D.3d 699998 N.Y.S.2d 4002014 N.Y. Slip Op. 08425In the Matter of Palma BONORA, deceased.Gary D. Gotlin, etc., respondent;Bruce L. Stein, etc., appellant.2014-02896Supreme Court, Appellate Division, Second ... of abode, does not warrant the conclusion 998 N.Y.S.2d 405that Mauriello had any authority to change the decedent's domicile (see Matter of Lillian U. , 20 Misc.3d 215, 216, 860 N.Y.S.2d 382 [Sup.Ct., Delaware County], revd. on other grounds Matter of Lillian U., 66 A.D.3d 1219, 887 N.Y.S.2d 321 ... ...
  • In re Bonora
    • United States
    • New York Supreme Court — Appellate Division
    • 3 Diciembre 2014
    ...123 A.D.3d 699998 N.Y.S.2d 4002014 N.Y. Slip Op. 08425In the Matter of Palma BONORA, deceased.Gary D. Gotlin, etc., respondent;Bruce L. Stein, etc., appellant.Supreme Court, Appellate Division, Second Department, ... warrant the conclusion         [998 N.Y.S.2d 405] that Mauriello had any authority to change the decedent's domicile ( see Matter of Lillian U., 20 Misc.3d 215, 216, 860 N.Y.S.2d 382 [Sup.Ct., Delaware County], revd. on other grounds Matter of Lillian U., 66 A.D.3d 1219, 887 N.Y.S.2d 321; ... ...
  • In re Matarazzo
    • United States
    • New York Surrogate Court
    • 20 Julio 2021
    ... ... this burden, the movant must establish the decedent's intention to effect a change of domicile from her acts, statements, and conduct (see, Matter of Pingpank, 134 AD2d 263, 265, 520 N.Y.S.2d 596 ). "The element of intent is essential" ( Laufer v. Hauge, 140 AD2d 671, 673, 528 N.Y.S.2d 878 ) ... See, e.g., In re Guardian & Prop. of Lillian , 20 Misc 3d 215, 21617 (Sup. Ct. 2008), rev'd sub nom. In re Lillian U., 66 AD3d 1219 (3d Dept. 2009) (holding that a guardian appointed pursuant to ... ...
  • In the Matter of Rebecca P., 2009 NY Slip Op 51557(U) (N.Y. Sup. Ct. 7/16/2009)
    • United States
    • New York Supreme Court
    • 16 Julio 2009
    ... ... York); Matter of Le, 168 Misc 2d 384 (Sup Ct, Queens County, 1995) (New York court had jurisdiction to appoint a guardian for property management of AIP who now lived in California, as the AIP was physically present in Queens County when the guardianship proceeding was commenced); Matter of Lillian ... ...

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