State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 521844 

________________________________

In the Matter of ARTHUR R.

JOHNSON, Commissioner of 

Social Services of Broome 

County, as Guardian for 

JUANITA P., an Incapacitated 

Person, MEMORANDUM AND ORDER

Appellant,

v

FRANK BUONO,

Respondent.

________________________________

Calendar Date: May 27, 2016

Before: McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.

__________

Arthur R. Johnson, Broome County Department of Social

Services, Binghamton (Philomena M. Stamato of counsel), for

appellant.

Sheila Shea, Mental Hygiene Legal Service, Albany, for

respondent.

__________

Aarons, J.

Appeal from an order of the Supreme Court (Guy, J.),

entered May 26, 2015 in Broome County, which, in a proceeding

pursuant to Mental Hygiene Law article 81, among other things,

awarded a money judgment to respondent on his counterclaim.
-2- 521844 

In August 2014, petitioner was appointed guardian of the

person and property of Juanita P., an incapacitated person, in a

proceeding under Mental Hygiene Law article 81. Earlier in the

year, Juanita P. had rented an apartment from respondent that she

vacated before eventually being placed in a nursing home. In

December 2014, petitioner brought an application pursuant to

Mental Hygiene Law § 81.43 for the discovery of property

belonging to Juanita P. that was allegedly in respondent's

possession. Respondent served a "notice of answer and

counterclaim" seeking $3,263.03 for past due rent and damages to

the apartment. Thereafter, following a nonevidentiary hearing,

Supreme Court granted petitioner's application and ordered

respondent to turn over petitioner's property, but also awarded

respondent a money judgment against Juanita P. in the amount of

$3,000 on his counterclaim. Petitioner now appeals.

Mental Hygiene Law § 81.43 provides a mechanism by which a

guardian appointed in a Mental Hygiene Law article 81 proceeding

may fulfill his or her duties of identifying and protecting the

assets of an incapacitated person for that person's benefit (see

Mental Hygiene Law §§ 81.20 [6] [ii], [iv]; 81.43 [a]). It is

part of an overall statutory scheme that is remedial in nature

and designed to assist persons in taking action through a

representative that they could not otherwise take themselves

because of their incapacity (see Mental Hygiene Law § 81.01; see

generally Matter of Shah, 257 AD2d 275, 282 [1999], affd 95 NY2d

148 [2000]). Under Mental Hygiene Law § 81.43 (a), a guardian

may, by way of petition, bring an application to discover

property belonging to an incapacitated person that is being

withheld by a respondent and the court may conduct an inquiry of

the respondent to ascertain if such property is within his or her

control. The statute provides that the respondent may serve an

answer to the petition and that "[a]ny claim of title to or right

to the possession of any property of the incapacitated person

must be made by verified answer in writing" (Mental Hygiene Law

§ 81.43 [b]). It further states that, "[i]f such answer is

interposed, the issues raised thereby shall be tried according to

the usual practice of the court as a litigated issue" (Mental

Hygiene Law § 81.43 [b]).
-3- 521844 

Here, although respondent claimed a right to Juanita P.'s

property as an offset to past due rent and damages to the

apartment, he did not serve a verified answer as required by 

statute (see Mental Hygiene Law § 81.43 [b]). More

significantly, Supreme Court did not treat the claim as a

litigated issue as it failed to hear any testimony related to the

claim or receive any documentary evidence substantiating the

amount of respondent's damages. While Supreme Court correctly

noted to respondent that his avenue of recourse would be to

commence a separate action at law and, in fact, granted

respondent permission to do so, Supreme Court inexplicably, and

contrary to what it stated to the parties at the hearing, awarded

a money judgment in favor of respondent. Based on the foregoing,

this was error, and that part of the order that awarded a money

judgment in favor of respondent must be reversed. 

McCarthy, J.P., Rose, Devine and Clark, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as awarded a money judgment

to respondent against Juanita P. in the amount of $3,000 on his

counterclaim, and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court