Opinion
2011-10-18
In the Matter of JACK S. (Anonymous), as temporary administrator of the estate of Antoine S. (Anonymous), respondent.Roger S. (Anonymous), appellant-respondent;Jack S. (Anonymous), respondent-appellant;Chuck S. (Anonymous), et al., respondents.
Barnes & Barnes, P.C., Garden City, N.Y. (Matthew J. Barnes of counsel), for appellant-respondent.Jack S., Brooklyn, N.Y., respondent-appellant pro se.
In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian
for the person and property of Antoine S., an alleged incapacitated person, the petitioner, Roger S., appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Lewis, J.), entered July 22, 2009, which, inter alia, conditionally dismissed the petition, and Jack S. cross-appeals, as limited by his brief, from so much of the same judgment as, upon an interlocutory judgment of the same court dated June 19, 2008, determining, after a hearing, that Antoine S. was incapacitated and appointing a special guardian for the property of Antoine S., directed him, as the attorney-in-fact for the alleged incapacitated person, to pay the court evaluator the sum of $20,100, the special guardian the sum of $4,910, and the court-appointed psychiatrist the sum of $1,725, all to be paid from the assets of the alleged incapacitated person “or funds transferred from him to other persons for the purpose of medicaid planning.”
ORDERED that the appeal is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the cross-appeal is dismissed, without costs or disbursements.
In 2005, the petitioner, Roger S., commenced this proceeding to appoint a guardian for the person and property of his father, Antoine S. In an interlocutory judgment dated June 19, 2008, the Supreme Court found Antoine S. to be incapacitated, and it appointed a special guardian for his property. The court also removed certain proceedings related to Antoine S.'s real property that were pending in other courts and consolidated them with this proceeding. In 2009, the special guardian reported that Antoine S. had, at an earlier time, adequately planned for his personal and property needs by means of advance directives, and that, while he now “could be influenced,” he had not been “unduly influenced.” At oral argument, the court stated that it adhered to its determination in the interlocutory judgment dated June 19, 2008, that Antoine S. was incapacitated at that time, but it nevertheless dismissed the petition in the judgment appealed from, which provided for the payment of fees from Antoine S.'s assets. The petitioner appeals and Jack S., as Antoine S.'s attorney-in-fact, cross-appeals from certain portions of the judgment.
Antoine S. died in January 2010, after the petitioner perfected his appeal but before Jack S., as Antoine's attorney-in-fact, perfected the cross appeal. By order of this Court dated December 2, 2010, Jack S., as temporary administrator of the estate of Antoine S., was substituted for Antoine S.
Antoine S.'s death renders academic the issues raised by Roger S., and his appeal, therefore, must be dismissed ( see Matter of Carl KK., 42 A.D.3d 704, 838 N.Y.S.2d 454; Matter of Ida S., 1 A.D.3d 440, 441, 766 N.Y.S.2d 899; Matter of Klasson, 290 A.D.2d 223, 735 N.Y.S.2d 757).
The issues raised on the cross appeal are not academic ( see Mental Hygiene Law § 81.09[f]; Matter of Audrey J.S., 34 A.D.3d 820, 821, 825 N.Y.S.2d 520; Matter of Enid B., 7 A.D.3d 704, 705, 777 N.Y.S.2d 178; Matter of Tijuana M., 303 A.D.2d 681, 682, 756 N.Y.S.2d 796; Matter of Specht, 265 A.D.2d 919, 695 N.Y.S.2d 822; cf. Matter of Marion C.W. [ Lisa K.-Maguire], 83 A.D.3d 1089, 1090, 923 N.Y.S.2d 558; Matter of Annette B., 56 A.D.3d 551, 552, 866 N.Y.S.2d 881; Ricciuti v. Lombardi, 256 A.D.2d 892, 682 N.Y.S.2d 264). Nonetheless, the cross appeal also must be dismissed because Jack S. has not provided an appendix adequate to enable this Court to render an informed decision on the merits ( see Miller v. Cruise Fantasies, Ltd., 74 A.D.3d 921, 922, 902 N.Y.S.2d 372;
Cohen v. 1651 Carroll Realty Corp., 23 A.D.3d 603, 805 N.Y.S.2d 632; Patel v. Patel, 270 A.D.2d 241, 242, 704 N.Y.S.2d 606).
RIVERA, J.P., BALKIN, LOTT and AUSTIN, JJ., concur.