In re Bernz ( 1988 )

— Motion, insofar as it seeks leave to appeal to the Court of Appeals, denied as academic, and insofar as it seeks reargument granted, and upon reargument, the order of this court entered on January 7, 1988 (136 AD2d 976) is recalled and vacated, and a new order and the following memorandum decision substituted therefor.

Order, Supreme Court, New York County (Edith Miller, J.), entered on or about February 25, 1987 which, upon reargument, adhered to a prior determination of the same court denying petitioner’s application for the appointment of a conservator pursuant to article 77 of the Mental Hygiene Law upon the ground of forum non conveniens, unanimously modified, on the law, to the extent of reinstating the petition and the matter is remanded for further proceedings without prejudice to a motion by any party to dismiss the proceeding on the ground of forum non conveniens, and the order is otherwise affirmed, without costs and without disbursements.

It was not within the court’s power to sua sponte deny the petition and dismiss the proceeding on the ground of forum non conveniens. The doctrine of forum non conveniens may only be employed by a court on the motion of a party. (VSL Corp. v Dunes Hotels & Casinos, 70 NY2d 948.) Concur— Murphy, P. J., Kupferman, Sullivan, Carro and Milonas, JJ.