Opinion
787.1 CA 02-00764
July 3, 2002.
Appeal from an order and judgment (one document) of Supreme Court, Monroe County (Galloway, J.), entered December 18, 2001, which appointed Robert Flight as guardian for Edward D. Flight.
WOODS OVIATT GILMAN LLP, ROCHESTER (RENÉ H. REIXACH OF COUNSEL), FOR PETITIONER-APPELLANT.
CHARLES S. TURNER, COUNTY ATTORNEY, ROCHESTER (MARK E. MAVES OF COUNSEL), FOR RESPONDENT-RESPONDENT MONROE COMMUNITY HOSPITAL.
MENTAL HYGIENE LEGAL SERVICE, ROCHESTER (KEVIN C. O'CONNELL OF COUNSEL), RESPONDENT-RESPONDENT PRO SE.
DAVIDSON, FINK, COOK, KELLY GALBRAITH, LLP, ROCHESTER (EUGENE T. CLIFFORD OF COUNSEL), FOR RESPONDENT-RESPONDENT ROBERT FLIGHT, COURT
APPOINTED GUARDIAN FOR EDWARD D. FLIGHT.
Before: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, Robert Flight is appointed as respondent's guardian pending the outcome of the hearing and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum:
Petitioner commenced this proceeding under article 81 of the Mental Hygiene Law seeking appointment of a guardian to provide for the personal needs and property management of respondent. Supreme Court properly determined under the circumstances that petitioner was not entitled to discontinue the proceeding pursuant to CPLR 3217 (a)(1) ( see Matter of Spadafora, 54 Misc.2d 123, 125, affd 29 A.D.2d 742; see generally 7 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3217.05). The court erred, however, in appointing a guardian for respondent without conducting a hearing ( see Mental Hygiene Law § 81.11 [a]; Matter of Hoffman, 288 A.D.2d 892, 893; Matter of Ruth TT., 267 A.D.2d 553, 554-555). We therefore reverse the order and judgment and remit the matter to Supreme Court, Monroe County, to conduct a hearing on the petition and make the requisite findings ( see § 81.15), including findings with respect to the choice of guardian ( see Matter of Pasner, 215 A.D.2d 763). We appoint Robert Flight as respondent's guardian pending the outcome of the hearing ( see Hoffman, 288 A.D.2d at 893).