Matter of Sidney W.B. (Petraglia--Rosenberg) , 18 N.Y.S.3d 560 ( 2015 )

Matter of Sidney W.B. (Petraglia--Rosenberg) (2015 NY Slip Op 07969)

Matter of Sidney W.B. (Petraglia--Rosenberg)

2015 NY Slip Op 07969

Decided on November 4, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 4, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SHERI S. ROMAN, JJ.

2013-10338
(Index No. 30170/11)

[*1]In the Matter of Sidney W. B. (Anonymous).

and

Albert W. Petraglia, etc., et al., respondents; Samara Rosenberg, appellant.

Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger, Stephen B. Hand, Sally M. Donahue, and Lesley Reardon of counsel), for appellant.

DECISION & ORDER

In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian of the person and property of Sidney W.B., an alleged incapacitated person, Samara Rosenberg appeals from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated August 19, 2013, as granted the application of Peter Kelly for an award of an attorney's fee for legal services rendered as attorney for the objectant Geraldine B. to the extent of awarding him the sum of $52,635.

ORDERED that on the Court's own motion, the notice of appeal from the order is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the application of Peter Kelly for an award of an attorney's fee is denied.

Article 81 of the Mental Hygiene Law does not authorize an award of an attorney's fee for services rendered in opposing a petition for the appointment of a guardian for the person and property of an alleged incapacitated person (see Matter of Ruth Q., 23 AD3d 479, 479; cf. Mental Hygiene Law §§ 81.09[f]; 81.10[f]; 81.16[f]; 81.23[a][1]). Accordingly, the Supreme Court erred in awarding an attorney's fee to Peter Kelly for legal services rendered as attorney for Geraldine B., who opposed the petition.

MASTRO, J.P., BALKIN, DICKERSON and ROMAN, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court