N.Y. MHY Law § 81.43 — New York Code / Act MHY / Title E / Article 81 / Section 81.43
Proceedings to discover property withheld
Status: in_force

§ 81.43 Proceedings to discover property withheld.\n  (a) To the extent that it is consistent with the authority otherwise\ngranted by the court a guardian may commence a proceeding in the court\nwhich appointed the guardian to discover property withheld. The petition\nshall contain knowledge, or information and belief of any facts tending\nto show that any interest in real property or money or other personal\nproperty, or the proceeds or value thereof, which should be delivered\nand paid to the guardian, is in the possession, under the control, or\nwithin the knowledge or information of respondent who withholds the same\nfrom the guardian, whether such possession or control was obtained\nbefore or after the appointment of the guardian, or that the respondent\nrefuses to disclose knowledge or information which such person may have\nconcerning the same or which will aid the guardian in making discovery\nof such property. The petition shall request that respondent be ordered\nto attend an inquiry and be examined accordingly and deliver property of\nthe incapacitated person if it is within his or her control. The\npetition may be accompanied by an affidavit or other written evidence,\ntending to support the allegations thereof. If the court is satisfied on\nthe papers so presented that there are reasonable grounds for the\ninquiry, it must make an order accordingly, which may be returnable\nforthwith, or at a future time fixed by the court, and may be served at\nany time before the hearing. If it shall appear from the petition or\nfrom the answer interposed thereto, or in the course of the inquiry made\npursuant to the order that a person other than the respondent in the\nproceeding claims an interest in the property or the proceeds or the\nvalue thereof, the court may by the original order or by supplemental\norder, direct such additional party to attend and be examined in the\nproceeding in respect of his or her adverse claim, and deliver the\nproperty if in his or her control or the proceeds or value thereof.\nService of such an order must be made by delivery of a certified copy\nthereof to the person or persons named therein and the payment or\ntender, to each of the sum required by law to be paid or tendered to a\nwitness who is subpoenaed to attend a trial in such court.\n  (b) If the person directed to appear submits an answer denying any\nknowledge concerning or the possession of any property which belongs to\nthe incapacitated person or should be delivered to the guardian, or\nshall make default in answer, he or she shall be sworn to answer truly\nall questions put to him or her regarding the inquiry requested in the\npetition. Any claim of title to or right to the possession of any\nproperty of the incapacitated person must be made by verified answer in\nwriting. If such answer is interposed, the issues raised thereby shall\nbe tried according to the usual practice of the court as a litigated\nissue but the interposition of such answer shall not limit the right of\nthe guardian to proceed with the inquiry in respect of property not so\nclaimed by the verified answer. If possession of the property is denied,\nproof on that issue may be presented to the court by either party. The\ncourt may in an appropriate case make interim decrees directing the\ndelivery of property not claimed by verified answer and may continue the\nproceeding for determination of any litigated issue. If it appears that\nthe guardian is entitled to the possession of the property, the decree\nshall direct delivery thereof to the guardian or if the property shall\nhave been diverted or disposed of, the decree may direct payment of the\nproceeds or the value of such property or may impress a trust upon said\nproceeds or make any determination which a court of equity might decree\nin following trust property funds. In any case in which a verified\nanswer is served and the court after a trial or hearing determines the\nissue, the court may in its discretion award costs not exceeding fifty\ndollars and disbursements to be paid by the unsuccessful party.\n