Tower Insurance v. Estate of DeCosta

113 A.D.3d 572, 979 N.Y.2d 324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2014
• Status: Published

Opinion

As an initial matter, the court did not neglect to consider appellants’ application for a GAL pursuant to CPLR 1201, but expressly denied the motion. The court properly denied the motion, without a hearing, as appellants’ moving papers were insufficient to make a prima facie demonstration of the need for the appointment of a GAL for Sydney Gordon (see Roach v Benjamin, 78 AD3d 468 [1st Dept 2010]; Urban Pathways v Lublin, 227 AD2d 186 [1st Dept 1996]).

In their initial papers, appellants submitted affidavits from counsel and Gordon’s family, which generally described an elderly man with some memory loss and difficulties managing a multiple dwelling. They did not indicate that Gordon was incapable of prosecuting or defending his rights. Conspicuously absent were any medical records supporting appellants’ position. Respondents, on the other hand, submitted the record of Gordon’s most recent doctor visit, which did not support appellants’ position, as, among other things, Gordon’s treating physician expressly concluded that Gordon did not need a guardian and was able to handle his own affairs. Even the medical records by the same physician of earlier examinations, submitted for the first time in appellants’ reply papers, were insufficient. Concur — Gonzalez, P.J., Friedman, Renwick, Freedman and Richter, JJ.