IN RE: LEONARDO V. (2025)

MEMORANDUM AND ORDER

Appeals from a judgment and an order of the Supreme Court (Keri Savona, J.), entered June 21, 2024 in Ulster County, which, in a proceeding pursuant to Mental Hygiene Law article 81, among other things, directed petitioner to pay the fees of the court evaluator.

Petitioner commenced the present proceeding seeking the appointment of a guardian of respondent pursuant to Mental Hygiene Law article 81 alleging that respondent was an incapacitated person.  A court evaluator was appointed, performed an evaluation of respondent and authored a report finding that respondent would benefit from a temporary guardian to assist in obtaining certain benefits.  Thereafter, a hearing was held, at which the parties came to an agreement whereby respondent consented to the appointment of a temporary guardian until these certain benefits were conferred.  The parties consented to this agreement, and a judgment was entered by Supreme Court to this effect.  Despite petitioner's objection, this judgment also ordered that petitioner must pay the fees of the court evaluator.  Consequently, the court entered a separate order directing petitioner to pay $2,450 to the court evaluator.  Petitioner appeals both the judgment and the order, limiting its arguments to the issue of the payment of the court evaluator.

When a petition for the appointment of a guardian pursuant to article 81 of the Mental Hygiene Law is granted, “the court may award a reasonable compensation to a court evaluator ․ payable by the estate of the allegedly incapacitated person” (Mental Hygiene Law § 81.09[f]).  Conversely, when the petition is denied or dismissed, “the court may award a reasonable allowance to a court evaluator ․ payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just” (Mental Hygiene Law § 81.09[f]).  As a result, “[t]he court may direct the petitioner to pay such fees or a portion thereof only when the petition is denied or dismissed” (Matter of Charles X., 66 A.D.3d 1320, 1321, 887 N.Y.S.2d 731 [3d Dept. 2009] [emphasis added];  see Matter of Alexander B.P. [Hafner], 165 A.D.3d 801, 802, 86 N.Y.S.3d 103 [2d Dept. 2018];  Matter of Buttiglieri [Ferrel J.B.], 158 A.D.3d 1166, 1167, 70 N.Y.S.3d 639 [4th Dept. 2018]).

The petition underlying this proceeding was granted upon respondent's consent to the appointment of a temporary guardian for the limited purpose outlined above.  Petitioner could have stipulated to the payment of the court evaluator's fees, as Supreme Court initially attempted to achieve here, but did not do so (compare Matter of Alexander B.P. [Hafner], 165 A.D.3d at 802, 86 N.Y.S.3d 103).  Therefore, the court was without authority to direct petitioner to pay the court evaluator's fees after petitioner declined to do so out of its own benevolence (see Matter of Marie P.L.A., 215 A.D.3d 671, 673, 187 N.Y.S.3d 255 [2d Dept. 2023];  Matter of Buttiglieri [Ferrel J.B.], 158 A.D.3d at 1167–1168, 70 N.Y.S.3d 639;  Matter of Loftman [Mae R.], 123 A.D.3d 1034, 1037, 999 N.Y.S.2d 166 [2d Dept. 2014]).¹  Accordingly, that aspect of the judgment directing petitioner to pay the court evaluator's fees must be reversed and, likewise, the order directing petitioner to pay $2,450 to the court evaluator must be as well.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as directed petitioner to pay the court evaluator's fees, and, as so modified, affirmed.

ORDERED that the order is reversed, on the law, without costs.

FOOTNOTES

1.   We note the fact that respondent is indigent.  Although Mental Hygiene Law § 81.10(f) relieves indigent individuals of a responsibility to pay, Mental Hygiene Law § 81.09(f) does not do so, and it is for the Legislature to rectify this apparent inconsistency (see Matter of Charles X., 66 A.D.3d at 1321 n. 2, 887 N.Y.S.2d 731).

Powers, J.

Egan Jr., J.P., Clark, Lynch and Mackey, JJ., concur.