The attorney for the alleged incapacitated person ("AIP") moves to dismiss the instant petition pursuant to CPLR §404 and Rules 3211(a)(7) and 3211(a)(10).

Counsel for the AIP asserts that the instant petition was not served upon the AIP's wife, mother, father or sister. Additionally, it is alleged that Mr. Rose receives benefits and that the Dutchess County Department of Social Services was not noticed with the instant proceeding.^[FN1] Mental Hygiene Law §81.07(g) requires that each of those individuals is entitled to timely notice of the proceedings. While it is true that this court could not proceed to a hearing without proper notice to the individuals required by MHL §81.07 (In re John T., 42 AD3d 459 [2d Dept. 2007]), the failure to provide such notice does not render the petition jurisdictionally defective under the statute. Therefore, it is ordered that the application to dismiss the instant petition pursuant to CPLR Rule 3211(a)(10) is denied.

Generally:

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord [*2]the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Fishberger v. Voss, 51 AD3d 627, 628 [2d Dept. 2008].)

However, in the instance of a special proceeding as herein, the court is permitted to consider extrinsic evidentiary materials. (Lev v. Lader, 115 AD2d 522, 523 [2d Dept. 1985].)This court must liberally construe the petition and not dismiss it for failure to state a cause of action if some valid claim can be discerned from the facts alleged. (M. Sobol, Inc. v. Goldman, 259 AD2d 526 [2d Dept. 1999].)

MHL §81.01 provides, in pertinent part:

"The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable. The legislature declares that it is the purpose of this act to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either person or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and

participation in all the decisions affecting such person's life."

MHL Article 81 requires the court (or a jury, if demanded) to determine, in the first instance, if the individual who is the subject of the proceeding is incapacitated as defined by the statute. It is only after such a determination that the court may consider dispositional alternatives which may include, pursuant to MHL §81.16(b), "protective arrangements and single transactions" without the need to appoint a guardian. If the court determines that the appointment of a guardian is necessary, "the order of the court shall be designed to accomplish the least restrictive form of intervention."

The instant petition sets forth sufficient facts to establish, on a prima facie basis, that Mr. Rose is incapacitated.

It is uncontroverted on this application that Mr. Rose previously executed a valid healthcare proxy and a power of attorney when there was no issue pertaining to his capacity. They have not been revoked. The agents possess sufficient combined authority to address the personal and property needs issues raised in the petition. The petition fails to assert that the appointment of a guardian for the AIP's personal and property needs is the least restrictive form of intervention available. The uncontroverted evidence adduced by the attorney for the AIP on this motion demonstrates that the appointment of a guardian is not the least restrictive form of intervention and is not necessary in light of the duly appointed agents for the AIP.

The court finds that there are no triable issues of fact as to whether the AIP requires the appointment of guardian for his personal and property needs. Therefore, it is ordered that the branch of the instant motion grounded in CPLR Rule 3211(a)(7) is granted, and the petition is dismissed.

The Court read and considered the following documents upon this application: [*3]

PAGES NUMBERED

1.Order to Show Cause and Petition

2.Notice of Motion.........................1

Affirmation-Flagello................1-6

3.Affirmation-Miller.......................1-3

The foregoing constitutes the order of the Court.

Dated:Poughkeepsie, New York

January 25, 2010

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

NATASHA CORNIN

40 Harrison Street, Apt. 33G

New York, New York 10013-2726

GERTRUDE MARTINS

523 Upland Drive

Wilmington, Delaware 28411

LISA MARIA ROSE

3013 Wind Spring Way

Snellville, Georgia 30039

012210 decision & order