Petraglia
v.
Rosenberg (In re Sidney W.B.)

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Second Department, New York.Nov 4, 2015
18 N.Y.S.3d 560 (N.Y. App. Div. 2015)
18 N.Y.S.3d 560133 A.D.3d 5962015 N.Y. Slip Op. 7969

2015-11-4

In the Matter of SIDNEY W.B. (Anonymous). 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.


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 ( seeCPLR 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 A.D.3d 479, 479, 808 N.Y.S.2d 110; 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.