In re Schunk

136 A.D.2d 904, 524 N.Y.S.2d 925, 1988 N.Y. App. Div. LEXIS 1339

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1988
• Status: Published

Opinion

Order insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: This appeal and cross appeal are from an order that appointed Jeanette Vargo coconservator and denied Var-go’s motion for removal of Edward Schunk, the current conservator. The conservatee is Charlotte Stepanik, Vargo’s sister. After entry of the order appealed from, Vargo moved for reargument of, or to vacate, the order. The court denied vacatur, but granted reargument, and upon reargument modified a previous directive immaterial to this appeal and otherwise adhered to its prior determination. When reargument is granted, the appeal is properly from the order issued on reargument, not the initial order (Hyman v Hillelson, 79 AD2d 725, affd 55 NY2d 624). Although neither party has appealed from the second order, we have exercised our discretion to consider both notices of appeal to be from the order granting reargument (CPLR 5520 [c]; see, Herring v City of Syracuse, 63 AD2d 833) and have reviewed matters decided in connection with the initial order (see, Kuhn v Kuhn, 134 AD2d 900).

Special Term correctly denied the request to remove the current conservator. The record indicates that his management of the conservatee’s property has been beneficial to the conservatorship and that the conservatee is receiving proper medical care. Petitioner’s charges of misconduct were unfounded, and the conservator’s minor errors of judgment do not warrant his removal.

However, we find that the appointment of Vargo as a coconservator was an abuse of discretion. Vargo did not request that she be appointed, and the record does not reveal that she has any experience that would benefit the conservatorship. Moreover, Vargo’s desire to remove her sister from the nursing home raises serious doubt that she is motivated to act in the conservatee’s best interests and her relationship with the existing conservator is such that the efficient management of the conservatee’s property would be jeopardized by repeated and prolonged disputes. Under these circumstances, Vargo should not have been appointed (see, Matter of Weisman, 112 AD2d 871, 872-873; Matter of West, 13 AD2d 599, 600).

We reject Vargo’s claim that the initial order was a consent order. The order itself does not recite that it was made on consent (see, Matter of Pulver, 86 AD2d 705), and no agreement or stipulation was placed upon the record during the initial proceeding (see, Tongue v Tongue, 97 AD2d 638; Hopkins v Hopkins, 97 AD2d 457). Additionally, the court issued a written decision, a fact that supports the notion that the determination was made on the merits. In sum, the record does not clearly indicate that the initial order was made by consent (see, Peterson v Swan, 119 NY 662, 663; 4 NY Jur 2d, Appellate Review, § 34). We do not reach the remaining issues raised in appellant Vargo’s brief as they have not been preserved for our review.

Accordingly, we modify the order entered on August 4, 1986 to include a direction vacating the appointment of Jeanette Vargo as coconservator as well as references in other directives in the initial order involving her appointment. (Appeals from order of Supreme Court, Erie County, Ricotta, J.—removal of conservator.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.