From Casetext: Smarter Legal Research

In the Matter of Marvin W

Appellate Division of the Supreme Court of New York, Second Department
Jun 2, 2003
306 A.D.2d 289 (N.Y. App. Div. 2003)

Opinion

2002-07273

Argued May 16, 2003.

June 2, 2003.

In a proceeding pursuant to Mental Hygiene Law article 81, the alleged incapacitated person appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Weiner, J.), dated June 19, 2002, as denied, without a hearing, his motion to terminate the guardianship.

Mary Grace Ferone, White Plains, N.Y. (Joseph Medic of counsel), for appellant.

Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Rockland County, for a new determination after a hearing pursuant to Mental Hygiene Law § 81.36(c).

The Supreme Court erred in denying the motion to terminate the guardianship without conducting a hearing. Mental Hygiene Law § 81.36(c) requires that a hearing be held in order to determine whether a guardianship should be terminated. At the hearing, the burden of proof is on the person objecting to the termination of the guardianship to establish by "clear and convincing evidence" that the guardian's authority should not be terminated (see Law Revision Comm. Comments, reprinted following McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.36, at 439). Accordingly, we remit the matter for a new determination after a hearing pursuant to Mental Hygiene Law § 81.36(c).

ALTMAN, J.P., FLORIO, ADAMS and RIVERA, JJ., concur.


Summaries of

In the Matter of Marvin W

Appellate Division of the Supreme Court of New York, Second Department
Jun 2, 2003
306 A.D.2d 289 (N.Y. App. Div. 2003)
Case details for

In the Matter of Marvin W

Case Details

Full title:IN THE MATTER OF MARVIN W. (ANONYMOUS), appellant; EVELYN W. (ANONYMOUS)…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 2, 2003

Citations

306 A.D.2d 289 (N.Y. App. Div. 2003)
760 N.Y.S.2d 337

Citing Cases

Lisa R. v. Regina L.F. (In re Regina L.F.)

Indeed, the record establishes that, before the order in appeal No. 2 was entered, the attorney for Catholic…

In the Mtr. of William

This power is reserved to the court appointing the guardian ( see Mental Hygiene Law § 81.36 [a]). Moreover,…