In re the Commissioner of Social Services

275 A.D.2d 713, 713 N.Y.S.2d 204, 2000 N.Y. App. Div. LEXIS 9166

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 11, 2000
• Status: Published

Opinion

—In a proceeding pursuant to Mental Hygiene Law article 81, inter alia, for the appointment of a guardian for the personal needs of the appellant, the appeal is from an order and judgment (one paper) of the Supreme Court, Orange County (Slobod, J.), dated August 6, 1999, which, after a non-jury trial, granted the petition and appointed a guardian.

Ordered that the order and judgment is affirmed, without costs or disbursements.

The petitioner commenced this proceeding under Mental Hygiene Law article 81 seeking to declare the appellant incapacitated and for the appointment of a guardian of her person. The appellant is a 37-year-old woman with mild retardation who suffers from respiratory insufficiency, congestive heart failure, and morbid obesity. Following a nonjury trial, the Supreme Court found that the petitioner had established by clear and convincing evidence that the appellant was incapacitated within the meaning of Mental Hygiene Law article 81 and appointed the petitioner to serve as her guardian.

The Supreme Court properly found that the appellant was incapacitated within the meaning of Mental Hygiene Law article 81. Clear and convincing evidence established that the appellant is not able to understand and appreciate the nature and consequences of her inabilities and that she is likely to suffer harm due to her limitations and inability to appreciate their consequénces (see, Matter of Harriet R., 224 AD2d 625; Matter of Lula XX., 224 AD2d 742). Ritter, J. P., Santucci, Florio and H. Miller, JJ., concur.