Petitioner has applied to the Court to discontinue this proceeding brought pursuant to Article 81 of the Mental Hygiene Law. North Shore University Hospital (hereinafter the Hospital), the facility in which the Alleged Incapacitated Person is currently residing, has made application to be substituted as Petitioner.

Petitioner commenced this proceeding by Order to Show Cause issued on Sept. 22, 2006. Petitioner is the daughter of the person alleged to be incapacitated. On the return date of the Order to Show Cause, the Alleged Incapacitated Person appeared with a retained attorney and opposed the Petition. Petitioner's attorney was granted a month's adjournment to enable him to prepare for the hearing and ascertain the state of his client's finances.

Also appearing in the proceeding was the Hospital where the Alleged Incapacitated Person has been residing for some months and an attorney for the cooperative building in which the Alleged Incapacitated Person has an apartment. A proceeding is currently pending to evict the Alleged Incapacitated Person from her cooperative apartment based upon a determination made by the cooperative that the Alleged Incapacitated Person is a danger to the other residents and a nuisance by virtue of the condition of her apartment and certain other actions. (See generally, 40 W 67th Street v Pullman, 100 NY2d 147 (2003); London Terrace Towers v Davis, 6 Misc 2d 600 [Civ. Ct., 2004]).

The Court Evaluator rendered his written report on Nov. 16, 2006 and, on the date to which the proceeding had been adjourned, the attorney for the Alleged Incapacitated Person filed a jury demand. He also requested additional time to prepare for trial. At that time, through her [*2]attorney, the Alleged Incapacitated Person consented on the record to the appointment of a Temporary Guardian who was empowered to render the cooperative apartment habitable and secure twenty-four hour a day live-in assistance for the Alleged Incapacitated Person should she elect to return to her apartment. A Temporary Guardian was appointed and the matter was put over to Jan. 5, 2007 to select a trial date.

On Jan. 5, 2007 the Alleged Incapacitated Person declined the opportunity to return to her cooperative apartment with a twenty-four hour a day aide selected by the Temporary Guardian. Her attorney was relieved upon his application to which Alleged Incapacitated Person consented. The Alleged Incapacitated Person was given thirty days to retain a new attorney to handle the jury trial. The parties again appeared in court on Feb. 13, 2007. The Alleged Incapacitated Person reported that she had been unable to retain new counsel. Petitioner indicated a reluctance to proceed with the petition because of the time and expense. The Alleged Incapacitated Person also had expressed toward the daughter anger arising out of the fact that the proceeding had been initiated. The matter was put over to March 1, 2007 for trial and Mental Hygiene Legal Services was appointed to assist the Alleged Incapacitated Person.

On March 1, 2007 the Petitioner discharged her attorney and expressed an intention to withdraw the Petition.

In Matter of Chackers (Shirley W.) (159 Misc 2d 912 [Sup. Ct., NY County (1993]), Justice Friedman held that a proceeding pursuant to Article 81 could only be discontinued by court order pursuant to CPLR 3217(b). He rejected a discontinuance by stipulation pursuant to CPLR 3217(a)(2) because he construed the Court Evaluator to be a party who could not stipulate to a discontinuance without court approval. Nevertheless a discontinuance was ultimately granted upon conditions which assured that the needs of the Alleged Incapacitated Person would be met and which obviated the need for a guardian.

While the Article 81 proceeding in Matter of Bloom (Spear) (1 Misc 3d 910(A) [Sup. Ct. Suffolk County, 2004]) was discontinued upon stipulation of the parties, the discontinuance was approved by the Court. In approving the discontinuance Justice Berler specifically noted that the Alleged Incapacitated Person

had agreed to accept the services of a professional care manager to assist her and that her living conditions and circumstances had improved obviating the need for a guardian. Justice Berler attributed these positive developments to the impetus provided by the Article 81 proceeding.

In the instant case, the circumstances of the Alleged Incapacitated Person have remained unaltered. She continues to reside in the Hospital and the proceeding to evict her from her cooperative apartment remains in suspense pending resolution of this matter. The fact that Petitioner has discharged her attorney and stated her reluctance to prosecute the proceeding to a conclusion make the simple denial of the application for a discontinuance an unsatisfactory resolution. It could hardly be anticipated that Petitioner would adequately prosecute the matter should the discontinuance be denied and, were she to pursue the matter, it would only exacerbate the strained relationships within the family.

At the Court's invitation the Hospital, where the Alleged Incapacitated Person resides, has applied for leave to takeover the prosecution of this Petition. The Hospital has been a participant in this proceeding since its inception having received notice as required by the [*3]statute. (MHL § 81.07(g)(1)(vi)). It is an entity that could have initiated the proceeding had Petitioner not done so. (MHL § 81.06(a)(7)). Were this proceeding to be abandoned, it is reasonably certain that the Hospital would then have to initiate a new petition since the eviction proceeding and the Alleged Incapacitated Person's absolute refusal to consider any alternative housing have rendered a safe discharge impossible. There is no apparent prejudice to the Alleged Incapacitated Person and she has not objected to the application. The issues in a proceeding pursuant to Mental Hygiene Law Article 81 do not turn upon who the Petitioner may be. Given the fact that interests of the original Petitioner and those of Dennis Dowling as Chief Executive Officer or designee of the Hospital are and should be identical, granting the substitution is appropriate. (See, Matter of St. Luke's-Roosevelt Hospital Center, 261 AD2d 320 [1st Dept, 1999]). Moreover, granting the substitution will avoid unnecessary delay and a pointless duplication of effort. (See, Bay State Heating & Air Conditioning v American Ins. Co., 78 AD2d 147, 149 [3d Dept, 1980]).

The application of North Shore University Hospital to be substituted as Petitioner is granted and the caption of the action will be amended to reflect the substitution.

It is, SO ORDERED.

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HON. GEOFFREY J. O'CONNELL, J.S.C.