In re Becker

Appellate Division of the Supreme Court of New York

In re Becker

45 A.D.2d 962, 359 N.Y.S.2d 337, 1974 N.Y. App. Div. LEXIS 4102

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 23, 1974

StatusPublished

This text of 45 A.D.2d 962 (In re Becker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Becker, 45 A.D.2d 962, 359 N.Y.S.2d 337, 1974 N.Y. App. Div. LEXIS 4102 (N.Y. Ct. App. 1974).

Pincite

Opinion

In a proceeding to declare a person incompetent, petitioner appeals (1) from so much of a judgment of the Supreme Court, Westchester County, dated April 2, 1974 and granting such relief, as appointed the First Westchester National Bank as eoeommittee of the person and property of the incompetent and (2) from a decision of said court, dated April 29, 1974, which denied petitioner’s motion to resettle the judgment so as to substitute as such cocommittee the National Bank of Westchester. Appeal from decision dismissed. No appeal lies from a decision. Judgment modified, on the law and in the exercise of discretion, by striking “ The First Westchester National Bank, 401 Main Street, New Rochelle, New York 10801 ” from the second decretal paragraph thereof and substituting therefor: “ the National Bank of Westchester As so modified, judgment affirmed insofar as appealed from. Appellantis awarded a single bill of costs against respondent First Westchester National Bank. Under the facts and circumstances of this ease, and in the absence of valid overriding objections to the bank nominated by petitioner to act as cocommittee of her incompetent husband, it was an abuse of discretion to appoint another bank to that position. Cohalan, Acting P. J., Christ and Munder, JJ., concur; Benjamin, J., dissents and votes to affirm, with the following memorandum: It was agreed that an institutional committee was required. It was entirely within the discretion of the Justice in charge of this proceeding to decide which institution should be entrusted with this incompetent’s estate. This discretion should not be disturbed. There is indeed no contention that the designation of the respondent bank was an abuse of discretion. The dispute is only as to counsel to be retained by such bank. Selection of counsel is necessarily within the sole control of a committee, and no basis for a declaration of abuse of discretion flows from such selection. Brennan, J., not voting.

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In a proceeding to declare a person incompetent, petitioner appeals (1) from so much of a judgment of the Supreme Court, Westchester County, dated April 2, 1974 and granting such relief, as appointed the First Westchester National Bank as eoeommittee of the person and property of the incompetent and (2) from a decision of said court, dated April 29, 1974, which denied petitioner’s motion to resettle the judgment so as to substitute as such cocommittee the National Bank of Westchester. Appeal from decision dismissed. No appeal lies from a decision. Judgment modified, on the law and in the exercise of discretion, by striking “ The First Westchester National Bank, 401 Main Street, New Rochelle, New York 10801 ” from the second decretal paragraph thereof and substituting therefor: “ the National Bank of Westchester As so modified, judgment affirmed insofar as appealed from. Appellantis awarded a single bill of costs against respondent First Westchester National Bank. Under the facts and circumstances of this ease, and in the absence of valid overriding objections to the bank nominated by petitioner to act as cocommittee of her incompetent husband, it was an abuse of discretion to appoint another bank to that position. Cohalan, Acting P. J., Christ and Munder, JJ., concur; Benjamin, J., dissents and votes to affirm, with the following memorandum: It was agreed that an institutional committee was required. It was entirely within the discretion of the Justice in charge of this proceeding to decide which institution should be entrusted with this incompetent’s estate. This discretion should not be disturbed. There is indeed no contention that the designation of the respondent bank was an abuse of discretion. The dispute is only as to counsel to be retained by such bank. Selection of counsel is necessarily within the sole control of a committee, and no basis for a declaration of abuse of discretion flows from such selection. Brennan, J., not voting.

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Bluebook (online)

45 A.D.2d 962, 359 N.Y.S.2d 337, 1974 N.Y. App. Div. LEXIS 4102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-becker-nyappdiv-1974.