IN RE: the Application of MZ and RZ (2026)

The Court has considered the motion of JBF ("Movant") for leave to intervene in the Mental Hygiene Law ("MHL") Article 81 Guardianship matter pursuant to CPLR § 1012 and CPLR § 1013, together with the affirmation in opposition, the Petition, the motion papers, oral argument, and the entire record.

For the reasons set forth below, the motion is DENIED to the extent relief is sought pursuant to CPLR § 1012, and GRANTED to the extent relief is sought pursuant to CPLR § 1013.

I. INTERVENTION AS OF RIGHT (CPLR § 1012)

Movant contends she is entitled to intervene as of right under CPLR § 1012(a)(2) and (3). That argument is legally untenable in the context of an MHL Article 81 proceeding. The principal impediment to the proposed intervenor's argument relates to the fact that CPLR § 1012(a) is inconsistent with CPLR § 401 as to whether intervention may be allowed in special proceedings "as of right."

To clarify the conflict, CPLR § 1012 may be applied to "any action" under certain circumstances and authorizes intervention "as of right." CPLR § 401 only applies to Special Proceedings, and only permits intervention "by leave of court:"

"After a proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court."

To aide in this analysis, a longstanding rule of legislative interpretation is that "where two statutes, or two separate provisions in one statute, are in conflict with each other, and one of 0the provisions is general in nature while the other is specific, then it is settled law that the provision which is specific will control." People v. McLaughlin, 93 Misc 2d 980, 985 (Sup. Ct. 1978). See Also People ex rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate's Court, 216 NY 154, 156-57 (1915), in which the Court of Appeals stated the rule as follows:

"An established rule in the construction of statutes is: A specific provision upon a particular subject controls general provisions for the class to which the subject belongs. If there are two provisions in the same act, of which one is special and particular, and clearly indicates the matter in controversy, whilst the other is general and would, if standing alone, include it also, and if reading the general provision side by side with the particular one, the inclusion of that matter in the former would produce a conflict between it and the special provision, it must be taken that the latter was designed as an exception to the general provision." (internal citations omitted)

A guardianship proceeding based upon MHL Article 81 is a "special proceeding" governed by CPLR Article 4. See Matter of Nunziata (Nancy K.), 72 Misc 3d 469, 475 (Sup. Ct., J. Knobel)(2021) ("In a special proceeding, such as the guardianship proceeding at bar, disclosure is available only by leave of the court in view of the need for a speedy adjudication, since permitting discovery could have the effect of delaying the proceeding"). See Also Matter of Giuliana M. (DeCarolis), 220 AD3d 864, 866-67 (App. Div. 2nd Dept., 2023) ("Insofar as discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding, such disclosure is granted only where it is demonstrated that there is need for such relief").

The phrase "by leave of court" found in CPLR § 401 signifies that the Court is free to grant or deny applications, which is inconsistent with an "intervention as of right." In certain statutes, for example CPLR § 3025(b), the phrase "By leave of Court" is accompanied by an explicit direction to the Court that "Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." Thus, the legislature has, in other circumstances dictated to the court how it may utilize its discretion. In CPLR § 401, however, no such direction accompanies the Court's discretion. This Court finds the legislature's exclusion of such direction significant.

The reason for such gatekeeping in special proceedings is clearly to expedite the process and avoid any procedures that may delay or derail the summary expeditious nature of special proceedings. As Judge Knobel has described it: "In a special proceeding, such as the guardianship proceeding at bar, disclosure is available only by leave of the court in view of the need for a speedy adjudication, since permitting discovery could have the effect of delaying the proceeding"). See Also Matter of Giuliana M. (DeCarolis), 220 AD3d 864, 866-67 (App. Div. 2nd Dept., 2023) ("Insofar as discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding, such disclosure is granted only where it is demonstrated that there is need for such relief").

The conclusion that CPLR § 1012 is unavailable in special proceedings such as guardianships has been previously identified by other courts. A Family Court guardianship application is also a special proceeding, and other Courts have refused to permit application of CPLR § 1012 right to intervene in such special proceedings:

"The School District seeks intervention as of right "when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" (CPLR 1012 [a] [2]). However, the court notes that a guardianship proceeding is a special proceeding as defined in article 4 of the CPLR (Matter of K.Z. v P.M., 29 Misc 3d 572, 906 NYS2d 724 [2010]) and, therefore, a motion to intervene is governed by CPLR 401. CPLR 401 provides that in a special proceeding intervention can only be had by leave of court. Accordingly, there is no right to intervene and this application is not governed by CPLR 1012 (a) (2). The court must determine whether it shall grant leave to intervene." Matter of E.T.N., 42 Misc 3d 526, 529 (Fam. Ct., 2013)

Accordingly, because in this Court's view no CPLR § 1012 "right to intervene" exists in an Article 81 special proceeding, movant cannot rely on CPLR § 1012 for intervention. This Court finds that a request made for "intervention as of right" under CPLR § 1012 is therefore DENIED as a matter of law.

For purposes of thoroughness, however, and assuming arguendo that an appellate court disagreed and held that CPLR § 1012 could be utilized in a special proceeding guardianship matter, this Court will address each of the three potential aspects of CPLR § 1012 and explain why they are inapplicable in MHL article 81 matters generally, and in this proceeding specifically.

Under CPLR § 1012(a), there are three separate scenarios, any one of which may justify intervention "as of right:"

(a) Intervention as of right. Upon timely motion, any person shall be permitted to intervene in any action:

1. when a statute of the state confers an absolute right to intervene; or

2. when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or

3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment.

CPLR § 1012(a)(1) authorizes intervention "when a statute of the state confers an absolute right to intervene." The statute invoked here is MHL Article 81, which itself is silent on any ability to intervene in a guardianship proceeding. As discussed above, Special Proceedings are statutory described in Article 4 of the CPLR, and CPLR § 401 explicitly denies an "absolute right to intervene," instead forbidding intervention "except by leave of court." CPLR § 1012(a)(1) thus does not apply to an MHL Article 81 proceeding generally (as the statute currently lacks such authority) and therefore does not apply in this specific case. To the extent proposed intervenor seeks relief pursuant to CPLR § 1012(a)(1), it is DENIED.

CPLR § 1012(a)(2) authorizes intervention "when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment" (Emphasis added). Both sides of that conjunction are problematic for the proposed intervention here.

The "person" invoked here is JBF, and it is not clear what JBF's interests are in a proceeding to determine 1) whether HF is incapacitated, 2) whether appointment of a guardian is necessary, 3) who the guardian should be, and 4) what powers to grant. She describes herself as being HF's wife, and his power of attorney. Neither of those convey an actual interest in the outcome of a guardianship proceeding, especially where HF already has an attorney assigned in this matter and can raise any issues or call the proposed intervenor as a witness if appropriate.

Additionally, it is not clear how JBF "is or may be bound by the judgment" in an MHL Article 81 proceeding. The only respondent is the Alleged Incapacitated Person ("AIP), and no decision which is issued in the MHL Article 81 proceeding will bind JBF. CPLR § 1012(a)(2) thus does not apply to an MHL Article 81 proceeding generally (as the only individual who is bound by the judgment is the Alleged Incapacitated Person) and therefore does not apply in this specific case. To the extent proposed intervenor seeks relief pursuant to CPLR § 1012(a)(2), it is DENIED.

CPLR § 1012(a)(3) authorizes intervention "when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." Thus CPLR § 1012(a)(3) applies only when the action involves the disposition or distribution of property AND the proposed intervenor (JBF) may be affected adversely by the judgment. Again, both sides of this conjunction are problematic for the proposed intervenor here.

An MHL Article 81 Proceeding does not involve the disposition of property — rather it involves a determination of whether the Alleged Incapacitated Person is incapacitated or not, and if so, whether a guardianship is required, and if so, who should be appointed guardian and what powers should be granted to the guardian. The resulting order and judgment does not determine the disposition or title of property — it simply determines who is authorized to dispose of the AIP's property in the best interests of the AIP.

Obviously, JBF may be affected adversely by the decisions a guardian (or for that matter HF) makes, but the questions determined at an MHL Article 81 guardianship proceeding do not dictate future decisions with respect to property, but rather who shall make those decisions. As a matter of law, JBF is not adversely affected by those narrow areas of inquiry in an Article 81 Proceeding. CPLR § 1012(a)(3) thus does not apply to an MHL Article 81 proceeding generally (as the property of the AIP is not the property owned by another person and no disposition of property is determined at such a hearing) and therefore does not apply in this specific case. To the extent the proposed intervenor seeks relief pursuant to CPLR § 1012(a)(3), it is DENIED.

II. PERMISSIVE INTERVENTION (CPLR § 1013)

Although intervention as of right is unavailable for the reasons explained above, the Court must still consider whether discretionary intervention is appropriate under CPLR § 1013. As a threshold matter, intervention pursuant to CPLR § 1013 is permitted "when a statute of the state confers a right to intervene in the discretion of the court." CPLR § 401 is such a statute, as it implies the Court may exercise discretion by granting leave to join, interplead, engage in third party practice, or intervene:

"After a proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court." (CPLR § 401)

However, after meeting that threshold requirement (as it does here), the Court must then exercise its discretion, and in doing so the statute the two issues the Court must consider:

"[T]he court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party." (CPLR § 1013)

In motion papers, the proposed intervenor argues for intervention on the basis that JBF is repeatedly referenced in the petition unfavorably, and she would like the ability to defend her actions and the conduct of the AIP. Specifically, the motion for intervention asserts:

"As both spouse and chosen fiduciary, [JBF] has a direct, substantial, and legally cognizable interest in the outcome of this proceeding that is not, and cannot be, adequately represented by any existing party." (¶6)

"[JBF]'s participation will therefore clarify the issues, not complicate them. She has firsthand knowledge concerning one of the core questions before the Court: whether even assuming [HF] requires assistance in certain respects, guardianship is necessary notwithstanding the existence of a duly executed POA, an existing support system, and a spouse who has been caring for him and assisting him at his request." (¶54)

Petitioners oppose intervention, claiming that intervention is not necessary, would complicate the issues, and create undue delay.

Counsel to the AIP joins in the application for intervention.

On the first issue of whether intervention will unduly delay the determination of the action, this Court notes that movant has made a representation that they are not seeking to inject unrelated claims into this proceeding:

"There is no such delay or prejudice here. [JBF] does not seek to inject unrelated claims into this proceeding. Her proposed pleading concerns the very issues Petitioners already placed before the Court, including [HF]'s alleged incapacity, his wishes, his care, his finances, his property, the need for a guardian, and the validity and effect of the 2024 POA." (¶49)

The Court credits the above quoted affirmation by counsel as a representation by an officer of the Court, and based upon those limited areas of inquiry, the Court finds that the movant's intervention would not unduly delay the determination of the action.

On the second issue of whether intervention will prejudice the substantial rights of any party, the Court notes that the Respondent in these proceedings whose incapacity will be litigated is the AIP, who has joined in the application to permit intervention. Thus, the Respondent's rights would not be prejudiced.

Nor would the Petitioner's rights be prejudiced by permitting another party to participate in litigation already submitted to the Court by the Petitioners themselves. As Petitioners have already commenced the special proceeding, raising the very issues which will be further addressed by the proposed-intervenor, it cannot be said that Petitioner's rights would be prejudiced by further evidence on these very issues.

Finally, this Court considers the proposed intervenor's stated reasons for the application on their merits. This Court has examined the petition in light of the motion for intervention and notes that the bulk of the Petition sets forth allegations of conduct on the part of JBF that amount to "undue influence," including the following:

A) Petitioners lack full direct knowledge of [HF]'s current condition because Petitioners (and other family members and long-term associates) have been cut off from seeing or speaking with [HF], upon information and belief, by [JBF] (also known as [JBF], hereinafter "[JBF]")." (¶5)

B) "Petitioners challenge the validity of the Purported POAs given, upon information and belief, (a) the diminished capacity that [HF] had as of the dates the POA were purportedly granted, (b) the undue influence exerted by [JBF] and other third parties on [HF], and (c) questions as to compliance with applicable formalities with respect thereto." (¶14)

C) "Petitioners have each repeatedly sought to see or speak with [HF], and to engage in a dialogue with [JBF], to seek to resolve whatever outstanding issues [JBF] or others believe may exist. These efforts have been rebuffed and instead met with extremely aggressive action after aggressive action. Petitioners are shocked by these actions and cannot imagine that [HF] would possibly condone these actions or let alone instruct that they be taken. The Petitioners desperately wish to see [HF] and reassure him of their continued love and affection. They have no interest in litigation and want nothing but to figure out a way for there to be family harmony at this late stage in [HF] 's life amongst the large non-traditional family structure that [HF] created and was dedicated to throughout his life. Instead, [JBF] and others appear to be misusing [HF] 's declining state and perhaps the Purported POAs (whether for their own enrichment or for some other reason) against those very people [HF] cared so much about and with whom he spent so many decades working. Sadly, [JBF] does not seem to understand that for [HF] and his sprawling non-traditional family structure, there was never any "us" versus "them." [HF] has always loved and cared for all of the members of his family, and his overriding goal and wish was to maintain this family, something [JBF] and others working with her now seem bent on destroying." (¶16)

D) Upon information and belief, as a result of undue influence, on March 6, 2026, a deed was allegedly executed purporting to transfer the NY City Apartment from the "[HF] Trust" (with [HF] purportedly signing on behalf of the trust) to "[HF] and [JBF] f/k/a [JBF], husband and wife, as tenants by the entirety" (with [HF] and [JBF] purportedly signing on behalf of each of themselves)." (¶56)

As [JBF] is uniquely situated to explain her decisions and conduct and has direct interest as spouse and agent on the AIP's Power of Attorney, it is appropriate to grant discretionary intervention.

Accordingly, discretionary intervention under CPLR § 1013 is GRANTED.

For the foregoing reasons:

1) ORDERED, that the motion of [JBF] to intervene as of right under CPLR § 1012 is DENIED as a matter of law pursuant to CPLR § 401; and it is further

2) ORDERED, that the motion for discretionary intervention under CPLR § 1013 is GRANTED; and it is further

3) ORDERED, that [JBF] shall be designated a Third Party Intervenor and shall be granted access to all documents and filing on NYSEF under the above-captioned index number.

Dated: June 25, 2026

ENTER:

Hon. Chris Ann Kelley, A.J.S.C.

Chris Ann Kelley, J.