In re Horowitz

Appellate Division of the Supreme Court of New York

In re Horowitz

123 A.D.2d 628, 506 N.Y.S.2d 781, 1986 N.Y. App. Div. LEXIS 60774

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

DecidedOctober 6, 1986

StatusPublished

This text of 123 A.D.2d 628 (In re Horowitz) 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 Horowitz, 123 A.D.2d 628, 506 N.Y.S.2d 781, 1986 N.Y. App. Div. LEXIS 60774 (N.Y. Ct. App. 1986).

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Opinion

Appeal by the Sag Harbor Savings Bank from so much of an order of the Surrogate’s Court, Suffolk County (Signorelli, S.), dated July 9, 1985, as sua sponte directed the bank to replace funds removed from a guardianship account by the appointed guardian without court authorization.

Order reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding insofar as it is asserted against the appellant dismissed.

The challenged order constituted an improper exercise of jurisdiction over the appellant bank. Pursuant to SCPA 203, a special proceeding is commenced by the filing of a petition; the requirement is not dispensed with or waived where the party appears before the Surrogate pursuant to the court’s notice of a scheduled conference. Moreover, the order appealed from in effect constitutes a judgment against the appellant, entered in violation of the appellant’s due process rights to notice and an opportunity to be heard.

A guardian ad litem should be appointed to protect the interests and property of the infants, which individual may, if he be so advised, then commence a proceeding against the bank and any other appropriate persons. Thompson, J. P., Niehoff, Eiber and Spatt, JJ., concur.

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Appeal by the Sag Harbor Savings Bank from so much of an order of the Surrogate’s Court, Suffolk County (Signorelli, S.), dated July 9, 1985, as sua sponte directed the bank to replace funds removed from a guardianship account by the appointed guardian without court authorization.

Order reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding insofar as it is asserted against the appellant dismissed.

The challenged order constituted an improper exercise of jurisdiction over the appellant bank. Pursuant to SCPA 203, a special proceeding is commenced by the filing of a petition; the requirement is not dispensed with or waived where the party appears before the Surrogate pursuant to the court’s notice of a scheduled conference. Moreover, the order appealed from in effect constitutes a judgment against the appellant, entered in violation of the appellant’s due process rights to notice and an opportunity to be heard.

A guardian ad litem should be appointed to protect the interests and property of the infants, which individual may, if he be so advised, then commence a proceeding against the bank and any other appropriate persons. Thompson, J. P., Niehoff, Eiber and Spatt, JJ., concur.

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Bluebook (online)

123 A.D.2d 628, 506 N.Y.S.2d 781, 1986 N.Y. App. Div. LEXIS 60774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-horowitz-nyappdiv-1986.