1400 CA 17-00589.

158 A.D.3d 1166 (2018)

70 N.Y.S.3d 639

2018 NY Slip Op 00738

In the Matter of MARK BUTTIGLIERI, Designee of the Chief Executive Officer of Upstate University Hospital of the State University of New York, Appellant, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of FERREL J.B., an Alleged Incompetent Person, Respondent; M. KATHLEEN LYNN, ESQ., Respondent. (Appeal No. 2.)

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided February 2, 2018.

It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs and the language in the ordering paragraph ", and is to be paid by Petitioner as an administrative expense" is vacated.

Memorandum: In this proceeding in which petitioner sought the appointment of a guardian of the person and property of an alleged incapacitated person (AIP), petitioner appeals from two orders that, respectively, directed petitioner to pay the fees for services submitted by the court-appointed attorney for the AIP and by the court evaluator (collectively, respondents). We agree with petitioner that Supreme Court erred in directing it to pay those fees.

Petitioner contends in appeal No. 2 that the court erred in directing it to pay attorney fees for the court-appointed attorney. We agree. Article 81 of the Mental Hygiene Law provides that the court may appoint an attorney to represent the AIP, and that petitioner may be directed to pay for such services where the petition is dismissed or the AIP dies before the proceeding is concluded (see § 81.10 [f]). In all cases, "[t]he court shall determine the reasonable compensation for the mental hygiene legal service or any attorney appointed pursuant to" that statute (id.). Nevertheless, "the statute is silent as to the source of funds for payment of counsel [where, as here,] the AIP is indigent" (Matter of St. Luke's-Roosevelt Hosp. Ctr. [Marie H.City of New York], 89 N.Y.2d 889, 891 [1996]; see Hirschfeld v Horton, 88 A.D.3d 401, 403 [2d Dept 2011], lv denied 18 N.Y.3d 804 [2012]). Despite that silence, it is well settled that "the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel" (St. Luke's-Roosevelt Hosp. Ctr., 89 NY2d at 892), and it is likewise well settled that the court should direct that requests for such compensation should be determined "in accordance with the procedures set forth in County Law article 18-B" (id.; see Matter of Rapoport v G.M., 239 A.D.2d 422, 422-423 [2d Dept 1997]). Thus, the court erred in directing petitioner to pay those fees.

We also agree with the contention of petitioner in appeal No. 3 that the court erred in directing it to pay the fees requested by the court evaluator. Where, as here, a court appoints a court evaluator pursuant to Mental Hygiene Law § 81.09 (a) and then "grants a petition, the court may award a reasonable compensation to a court evaluator, including the mental hygiene legal service, payable by the estate of the allegedly incapacitated person" (§ 81.09 [f]). The statute further provides that a court may direct petitioner to pay for the services of a court evaluator only where the court "denies or dismisses a petition," or the AIP "dies before the determination is made in the proceeding" (§ 81.09 [f]). Therefore, "notwithstanding Supreme Court's broad discretion to award reasonable fees in Mental Hygiene Law article 81 proceedings ..., [inasmuch as] petitioner was successful [and the AIP is alive], the court was without authority to ascribe responsibility to petitioner for payment of the court evaluator's fees" (Matter of Charles X., 66 A.D.3d 1320, 1321 [3d Dept 2009]).

Contrary to petitioner's contentions, although the court had discretion to appoint Mental Hygiene Legal Services as attorney for the AIP and to dispense with a court evaluator (see Mental Hygiene Law § 81.10 [g]), under the circumstances presented here "the court did not abuse its discretion as a matter of law in failing to do so" (St. Luke's-Roosevelt Hosp. Ctr., 89 NY2d at 892 n). Nevertheless, inasmuch as the court properly made the "determination that [the AIP] is incapacitated within the meaning of Mental Hygiene Law article 81, and [in] the absence of evidence that the petitioner commenced this proceeding in bad faith, it was an improvident exercise of discretion for ... Supreme Court to direct the petitioner to pay the fees of the court-appointed evaluator and the attorney it appointed to represent [the AIP] in the proceeding" (Matter of Loftman [Mae R.], 123 A.D.3d 1034, 1036-1037 [2d Dept 2014]; cf. Matter of Samuel S. [Helene S.], 96 A.D.3d 954, 958 [2d Dept 2012], lv dismissed 19 N.Y.3d 1065 [2012]). We therefore reverse, insofar as appealed from, the orders in appeal Nos. 2 and 3, and we vacate the language in each order directing petitioner to pay the respective fees for services rendered.


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