In re Palmiere

284 A.D.2d 965, 726 N.Y.S.2d 316, 2001 N.Y. App. Div. LEXIS 5792

Opinion

—Order unanimously affirmed without costs. Memorandum: Petitioner commenced this proceeding seeking the appointment of a guardian ad litem for a grandson, who was injured at the home of his aunt and uncle when he was six years old. Petitioner contends that there is a conflict of interest between the child and his parents, who have refused to commence a personal injury action against family members on the child’s behalf. Supreme Court did not abuse its discretion in denying the petition. By enacting CPLR 1201, the Legislature has “demonstrated a preference for natural guardians” (Stahl v Rhee, 220 AD2d 39, 44), and “[i]t is the policy of this State to encourage parents to act as guardians, thereby avoiding unnecessary appointments and the expense of a guardian ad litem” (Matter of Manufacturers Hanover Trust Co., 83 AD2d 808). Where, as here, “reasonable minds may legitimately differ, the judgment of the infant’s natural guardian [s] should prevail” (Stahl v Rhee, supra, at 46). Under the circumstances of this case, it cannot be said that the decision of the child’s parents not to commence an action against family members was “unreasonable, arbitrary, or capricious” (Stahl v Rhee, supra, at 46). (Appeal from Order of Supreme Court, Monroe County, Siracuse, J. — Guardian ad Litem.) Present — Pigott, Jr., P. J., Pine, Kehoe and Burns, JJ.