Wright v. Rickards

• Decision Date: 10 April 2012
• Parties: Phyllis WRIGHT, appellant, v. Carl RICKARDS, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02677
94 A.D.3d 874
942 N.Y.S.2d 153

Phyllis WRIGHT, appellant,
v.
Carl RICKARDS, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2012.

[942 N.Y.S.2d 154]

Gerald Gardner Wright, P.C. & Associates, Freeport, N.Y., for appellant.WILLIAM F. MASTRO, A.P.J., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.

[94 A.D.3d 874] In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diamond, J.), dated January 14, 2011, which denied her motion, in effect, for summary judgment on the complaint and granted that branch of the defendants' cross motion which was pursuant to CPLR 3211 to dismiss the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

In an order and judgment (one paper) dated November 13, 1995, Gerald G. Wright was appointed guardian of the person and property of Carl Rickards, an incapacitated person. The order and judgment provided, inter alia, that Gerald G. Wright shall marshal Rickards's assets for the purpose of prudently investing them so as to produce a reasonable income, and to apply so much of the income and principal as was necessary for the comfort, support, maintenance, and well-being of Rickards. In an order dated July 30, 2001, Gerald G. Wright was authorized, among other things, to pay from guardianship/trust funds the monthly rent for a single-family home that Rickards rented from the plaintiff, Phyllis Wright, Gerald G. Wright's wife, together with real estate and school taxes, utilities, and gardening expenses for the single-family home owned by the plaintiff. In an order and judgment (one paper) dated January 5, 2007, Gerald G. Wright was permitted to resign as Rickards's guardian, and David E. Smith was appointed as successor guardian of the person and property of Rickards. The order and judgment dated January 5, 2007, provided that Smith was to have the same authority granted to Gerald G. Wright in the order and judgment dated November 13, 1995, but did not contain any reference to the order dated July 30, 2001.

After his appointment, Smith refused to pay the real estate and school taxes and gardening expenses with respect to the [94 A.D.3d 875] property owned by the plaintiff and rented to Rickards. The plaintiff subsequently commenced this action against Rickards and Smith, as guardian for Rickards, alleging that Smith's failure to pay the...