IN RE: the Application of Nancy NUNZIATA (2021)

Supreme Court, Nassau County, New York.

IN RE: the Application of Nancy NUNZIATA, Commissioner of the Nassau County Department of Social Services, Petitioner, For the Appointment of a Guardian of Nancy K., An Alleged Incapacitated Person, Respondent, William McEnaney Cross-Petitioner.

850023-I-2021

Decided: April 15, 2021

Counsel for Petitioner: Nancy Nunziata, Commissioner of the Nassau County Department of Social Services, David Zachary Carl, Esq., Firm Name: Nassau County Department of Social Services, Address: 60 Charles Lindbergh Blvd Ste 160, Uniondale, NY 11553, Phone: (516) 227-8561, E-mail: mailto:david.carl2@hhsnassaucountyny.us Court Appointed Counsel for Nancy K., Alleged Incapacitated Person, Elisa Strassler Rosenthal, Esq., Firm Name: Rosenthal Law LLC, Address: 1050 Franklin Ave Ste 302, Garden City, NY 11530, Phone: (516) 361-6606, E-mail: ERosenthal@elderlawflg.com Court Appointed Trial Counsel for Nancy K., Alleged Incapacitated Person Brian R. Heitner, Esq., Firm Name: SELTZER SUSSMAN HABERMANN & HEITNER LLP, Address: 100 Jericho Quad Suite 226, Jericho, NY 11753, Phone: 516-935-3600 Fax: 516-933-3030, E-mail: Bheitner@sshlaw.com Court Evaluator, Edward Francis Cunningham, Esq., Firm Name: EDWARD F. CUNNINGHAM, ESQ., Address: 62 Cambridge Ave, Garden City, NY 11530, Phone: (516) 328-3705, E-mail: Ed@edcunninghamlaw.com Temporary Guardian, Lloyd Jeffrey Weinstein, Esq., Firm Name: THE WEINSTEIN GROUP, P.C., Address: 6800 Jericho Tpke Ste 112w, Syosset, NY 11791, Phone: (516) 802-5330, E-mail: ljw@theweinsteingroup.net Counsel for the Cross-Petitioner, Donald Novick, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: DNovick@novicklawgroup.com Counsel for the Cross-Petitioner, Kimberly Arlen Schechter, Esq., Firm Name: Novick & Associates, P.C. Address: 202 East Main Street, Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: KSchechter@novicklawgroup.com Counsel for the Cross-Petitioner, Albert Vincent Messina, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 6315470300 Fax: 631-547-0212, E-mail: AMessina@novicklawgroup.com

The following papers having been read:

Notice of Motion/Order to Show Cause 1

Cross Motion/Answering Affidavits 2

Upon the foregoing papers the motion by counsel for the respondent, the alleged incapacitated person, for an order granting partial judgment in her favor for summary judgment dismissing that part of the cross-petition seeking the validation and implementation of the health care proxy allegedly executed on October 8, 2019, is granted.

Pub. Health Law § 2981, titled Appointment of health care agent; health care proxy, reads in pertinent part:

2. Health care proxy; execution; witnesses. (a) A competent adult may appoint a health care agent by a health care proxy, signed and dated by the adult in the presence of two adult witnesses who shall also sign the proxy. Another person may sign and date the health care proxy for the adult if the adult is unable to do so, at the adult's direction and in the adult's presence, and in the presence of two adult witnesses who shall sign the proxy. The witnesses shall state that the principal appeared to execute the proxy willingly and free from duress. The person appointed as agent shall not act as witness to execution of the health care proxy.

The Health Care Proxy in question does not include a declaratory paragraph wherein the witnesses to the document attest that the principal appeared to execute the proxy willingly and free from duress.

Consequently, the Health Care Proxy dated October 8, 2019 is deemed void.

The foregoing constitutes the decision and order of this court.

Gary F. Knobel, J.

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