Opinion
2011-12-27
In the Matter of CARMEN H. (Anonymous).Thomas H. (Anonymous), appellant;Grace H. (Anonymous), respondent-respondent;Anthony J. Lamberti, etc., guardian ad litem-respondent;Mental Hygiene Legal Service, et al., nonparty-respondents.
Seidner & Associates, P.C., Westbury, N.Y. (Matthew S. Seidner of counsel), for appellant. *517 Ira K. Miller, Brooklyn, N.Y. (Arnold J. Ludwig of counsel), for respondent—respondent.
Seidner & Associates, P.C., Westbury, N.Y. (Matthew S. Seidner of counsel), for appellant. *517 Ira K. Miller, Brooklyn, N.Y. (Arnold J. Ludwig of counsel), for respondent—respondent.
In a proceeding pursuant to Mental Hygiene Law article 81, Thomas H., the son of Carmen H., an incapacitated person, appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (King, J.), dated March 28, 2011, as denied that branch of his motion which was pursuant to Mental Hygiene Law § 81.35 to remove Grace H. as guardian of the person of Carmen H.
ORDERED that the order is affirmed insofar as appealed from, with costs.
A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when “ ‘the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just’ ” ( Matter of Mary Alice C., 56 A.D.3d 467, 468, 867 N.Y.S.2d 138, quoting Mental Hygiene Law § 81.35; see Matter of Joshua H., 62 A.D.3d 795, 796, 880 N.Y.S.2d 645). “ ‘The trial court is accorded considerable discretion in determining whether a guardian should be replaced’ ” ( Matter of Joshua H., 62 A.D.3d at 797, 880 N.Y.S.2d 645, quoting Matter of Francis M., 58 A.D.3d 937, 938, 870 N.Y.S.2d 596; see Matter of Carol C., 41 A.D.3d 474, 475, 837 N.Y.S.2d 321).
Here, the Supreme Court providently exercised its discretion in denying that branch of the appellant's motion which was pursuant to Mental Hygiene Law § 81.35 to remove Grace H. as guardian of the person of Carmen H. ( see Mental Hygiene Law § 81.35; Matter of Mary Alice C., 56 A.D.3d at 468, 867 N.Y.S.2d 138; Matter of Dunsmoor, 24 A.D.3d 1218, 1218–1219, 805 N.Y.S.2d 918; Matter of Arnold O., 226 A.D.2d 866, 869, 640 N.Y.S.2d 355; cf. Matter of Joshua H., 62 A.D.3d at 797, 880 N.Y.S.2d 645). In support of that branch of his motion, the appellant offered only conclusory allegations of misconduct by Grace H., which were insufficient to warrant her removal as guardian ( see Matter of Mary Alice C., 56 A.D.3d at 468, 867 N.Y.S.2d 138; Matter of Arnold O., 226 A.D.2d at 869, 640 N.Y.S.2d 355).
The appellant's remaining contentions are without merit.