Opinion
2018–04758 Index No. 100072/10
01-23-2019
In the Matter of RAPHAEL R. (Anonymous), Appellant. v. Roberto LOPEZ, Respondent.
Jonathan Strauss, New York, NY, for appellant. Newman Ferrara LLP, New York, N.Y. (Lucas A. Ferrara and Ricardo M. Vera of counsel), for respondent.
Jonathan Strauss, New York, NY, for appellant.
Newman Ferrara LLP, New York, N.Y. (Lucas A. Ferrara and Ricardo M. Vera of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the order is reversed insofar as appealed from, on the law, with costs, Raphael R.'s motion to terminate the guardianship is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
In 2010, shortly after Raphael R. turned 18 years old, Raphael R.'s mother commenced the instant proceeding pursuant to Mental Hygiene Law article 81 seeking the appointment of a guardian to manage certain structured settlement funds awarded to Raphael R. pursuant to an infant compromise order stemming from a medical malpractice action. After conducting a hearing, the Supreme Court determined that Raphael R. was incapacitated within the meaning of Mental Hygiene Law article 81 and subsequently appointed a guardian to manage the settlement funds.
Approximately six years later, Raphael R. moved to terminate the guardianship. After conducting a hearing at which the guardian appeared in opposition to the motion, the Supreme Court denied the motion. Raphael R. appeals.
Pursuant to Mental Hygiene Law article 81, a court may appoint a guardian for a person upon a determination "that the appointment is necessary ... to manage the property and financial affairs of that person ... and ... that the person is incapacitated" ( Mental Hygiene Law § 81.02[a][1], [2] ). The determination of incapacity must "be based on clear and convincing evidence ... that a person is likely to suffer harm because ... the person is unable to provide for ... property management ... and ... cannot adequately understand and appreciate the nature and consequences of such inability" ( Mental Hygiene Law § 81.02[b][1], [2] ). Pursuant to Mental Hygiene Law § 81.36(a)(1), "[t]he court appointing the guardian shall discharge such guardian ... if it appears to the satisfaction of the court that ... the incapacitated person has become able to exercise some or all of the powers necessary to provide for ... property management which the guardian is authorized to exercise," with the burden of proof on the person, if any, objecting to such relief (see Mental Hygiene Law § 81.36[d] ).
Here, contrary to the Supreme Court's determination, the record does not contain clear and convincing evidence that Raphael R. remains incapacitated and in need of a guardian to manage his financial affairs (see Matter of Deborah P. [Marie F.] , 133 A.D.3d 602, 604, 18 N.Y.S.3d 710 ; cf. Matter of Perl [Evans] , 77 A.D.3d 525, 525–526, 910 N.Y.S.2d 52 ; Matter of Lee I. , 265 A.D.2d 750, 752, 697 N.Y.S.2d 385 ). Accordingly, the Supreme Court should have granted Raphael R.'s motion to terminate the guardianship (see Matter of Deborah P. [Marie F.] , 133 A.D.3d at 604, 18 N.Y.S.3d 710 ; Matter of Penson , 289 A.D.2d 155, 155, 735 N.Y.S.2d 51 ; cf. Matter of Perl [Evans] , 77 A.D.3d at 525–526, 910 N.Y.S.2d 52 ; Matter of Lee I. , 265 A.D.2d at 752, 697 N.Y.S.2d 385 ).
In light of our reversal, we remit the matter to the Supreme Court, Kings County, for further proceedings to effectuate the termination of the guardianship (see Mental Hygiene Law § 81.33 ).
LEVENTHAL, J.P., ROMAN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.