IN RE: Gary P. JENKINS (2024)

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered October 19, 2023, which denied respondent's motion to vacate an order and judgment, same court and Justice, entered September 23, 2022, adjudging her to be an incapacitated person and appointing a temporary guardian for her person and property for a period of three years, unanimously reversed, on the law, facts and in the exercise of discretion, without costs, the motion to vacate the order and judgment granted, and the matter remanded for further proceedings in accordance with this decision.

Under the unique facts of this case, we are exercising our inherent power to vacate the order and judgment in the interest of substantial justice (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003]).  Vacatur is warranted in the interest of justice because the court held a hearing pursuant to Mental Hygiene Law § 81.11 in respondent's absence and without having made a finding regarding her inability to meaningfully participate in the hearing (see Matter of Banks [Gwendolyn R.], 138 A.D.3d 519, 520, 28 N.Y.S.3d 321 [1st Dept. 2016]).  In addition, the court failed to appoint counsel to represent respondent even though she was contesting the guardianship petition (see Matter of Wogelt, 223 A.D.2d 309, 314, 646 N.Y.S.2d 94 [1st Dept. 1996]).

Accordingly, we remand the matter for a new hearing in accordance with this decision, to be held expeditiously.