Schunk, Matter of
| Decision Date | 29 January 1988 |
| Parties | Matter of Edward Jerome SCHUNK, Conservator of the Person and Property of Charlotte M. Stepanik, Conservatee. |
| Court | New York Supreme Court — Appellate Division |
Davis, Nesper & McElvein by Gabriel Ferber, Buffalo, for appellants-respondent Edward John Schunk.
Manz & Whitbread by David Manz, Kenmore, for respondent-appellant, Jeanette Vargo.
Before CALLAHAN, J.P., and DOERR, GREEN, BALIO, and DAVIS, JJ.
This appeal and cross-appeal are from an order that appointed Jeanette Vargo co-conservator and denied Vargo's motion for removal of Edward Schunk, the current conservator. The conservatee is Charlotte Stepanik, Vargo's sister. After entry of the order appealed from, Vargo moved for reargument of, or to vacate, the order. The court denied vacatur, but granted reargument, and upon reargument modified a previous directive immaterial to this appeal and otherwise adhered to its prior determination. When reargument is granted, the appeal is properly from the order issued on reargument, not the initial order ( Hyman v. Hillelson, 79 A.D.2d 725, 434 N.Y.S.2d 742, affd 55 N.Y.2d 624, 446 N.Y.S.2d 251, 430 N.E.2d 1304). Although neither party has appealed from the second order, we have exercised our discretion to consider both notices of appeal to be from the order granting reargument (CPLR 5520 see, Herring v. City of Syracuse, 63 A.D.2d 833, 406 N.Y.S. 409) and have reviewed matters decided in connection with the initial order (see, Kuhn v. Kuhn, 134 AD2d 900, 521 N.Y.S.2d 929).
Special Term correctly denied the request to remove the current conservator. The record indicates that his management of the conservatee's property has been beneficial to the conservatorship and that the conservatee is receiving proper medical care. Petitioner's charges of misconduct were unfounded, and the conservator's minor errors of judgment do not warrant his removal.
However, we find that the appointment of Vargo as a co-conservator was an abuse of discretion. Vargo did not request that she be appointed, and the record does not reveal that she has any experience that would benefit the conservatorship. Moreover, Vargo's desire to remove her sister from the nursing home raises serious doubt that she is motivated to act in the conservatee's best interests and her relationship with the existing conservator is such that the efficient management of the conservatee's property would be jeopardized by repeated and prolonged disputes. Under these circumstances, Vargo should not have been appointed ( see, Matter of Weisman, 112 A.D.2d 871, 872-873, 493 N.Y.S.2d 151; Matter of West, 13 A.D.2d 599, 600, 212 N.Y.S.2d 832).
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