By Order to Show Cause dated December 1, 2010, The New York Foundation for Senior Citizens Guardian Services, Inc. (NYF), community guardian of the person and property of the above-named Incapacitated Person, J. J., sought to permanently place Mr. J. in a skilled nursing facility; relinquish his apartment; judicially settle its final account; and be discharged as guardian. Following the appointment of Mental Hygiene Legal Service (MHLS) to represent Mr. J., and court proceedings, the Isabella Geriatric Center, Inc. (Isabella), where Mr. J. had been residing since March 2010, filed an Order to Show Cause seeking to intervene. MHLS filed papers in opposition to both the petition seeking placement and to Isabella's intervention.

As the matter was pending determination, the court received a letter from counsel for NYF, informing that Mr. J. has passed away, which renders moot that branch of its motion seeking permanent placement, and requesting that the court grant the remaining relief.

In light of Mr. J.'s death, the application of NYF to relinquish the apartment of Mr. J., and to file its final account and thereafter be discharged as guardian is granted in accordance with Mental Hygiene Law Sections 81.33 and 81.36. To the extent that the motion of Isabella to intervene in this matter may have continuing viability, it is denied on both procedural and substantive grounds.

In this regard, the court notes, as a threshold matter, that Isabella's intervention application is procedurally defective in its omission of a proposed pleading, as required pursuant to CPLR 1014. In addition, Isabella has failed to otherwise establish requisite grounds to intervene as of right (CPLR 1012),1 or in the discretion of the court (CPLR 1013).2

The law requires that a motion to intervene, whether pursuant to CPLR 1012 or CPLR 1013, "shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought." CPLR 1014; see Lamberti v. Metropolitan Transportation Authority, 170 AD2d 224 (1st Dept 1991); accord Zehnder v. State, 266 AD2d 224, 224-25 (2d Dept 1999) [*2](Supreme Court properly denied the motion to intervene in absence of proposed pleading); Rozewicz v. Ciminelli, 116 AD2d 990 (4th Dept 1986) (Special Term erred in even considering a motion to intervene that failed to attach a proposed pleading); Colonial Sand and Stone Co., Inc. v. Flacke, 75 AD2d 894, 895 (2d Dept 1980) (Court lacks power to grant a motion to intervene that fails to attach a proposed pleading). In the case at bar, Isabella's filings fail to compensate for this deficiency because its claims or defenses are not clearly set forth.

In light of Isabella's failure to provide a proposed pleading as required under CPLR 1014, its application for intervention fails to establish an appropriate claim or defense that would meet the statutory requirements of CPLR 1012 or 1013. Indeed, it is unclear whether Isabella seeks to intervene as a petitioner or as a respondent, and, to the extent that Isabella asserts its interest in protecting Mr. J. by ensuring his permanent placement, Isabella's position is in conflict with that of Mr. J.'s attorney.

Nor does Isabella's entitlement to notice of the guardianship proceeding provide a basis for intervention as a party. Although a nursing home facility in which an Incapacitated Person is in residence is entitled to notice of proceeding, and a copy of the order to show cause, MHL __ 81.07(g)(1)(vi), 81.07(g)(2), it is not entitled to service of the petition. Thus, contrary to Isabella's claim, the requirement that it be noticed does not provide a statutory entitlement to intervene in the proceeding, or to be considered an entity that will be affected by the outcome. See In re Grace R., 12 AD3d 764, 765-66 (3d Dept 2004) (person entitled to notice in Article 81 guardianship proceeding is not an "aggrieved party" with standing to appeal).

The court further notes that Isabella does not rely upon any interest that is inadequately represented by either party. To the extent that Isabella asserts Mr. J.'s well-being, it is the petitioning guardian who has the responsibility to determine and act in Mr. J.'s best interests. Moreover, the guardian seeks the very same relief in this regard, i.e., the permanent placement of Mr. J. In addition, Mr. J. is represented by counsel, whose responsibility it is to advocate on his behalf, and who does so here, in presenting his position that his medical condition does not warrant permanent placement.

Finally, the issue of whether Mr. J. will be permanently placed raises a conflict of interest for Isabella, which benefits from the Medicaid payments provided for Mr. J.'s residential care.

For all of these reasons, the court concludes that Isabella is not entitled to intervene, as it does not have a real and substantial interest in the outcome of the litigation, see Matter of Pier v. Bd. of Assessment Review of the Town of Niskayuna, 209 AD2d 788, 789 (3d Dept 1994) (intervention warranted when proposed intervenor has direct stake in the outcome of the litigation) and, indeed, has conflicting interests with Mr. J.

Accordingly, the application to intervene is denied. This determination is without prejudice to the submission by Isabella of any outstanding invoices related to Mr. J.

1. A potential party may intervene where there is a statutorily conferred right to do so; where the [*3]proposed intervenor's interests may not be adequately represented and the judgment is or may be binding; or where the action involves title, or claims for damages, to property and the proposed intervenor is or may be adversely affected by judgment (CPLR 1012[a] [1], [2], [3]).

2. A potential party may be granted permissive intervention when a statute permits intervention in the discretion of the court, or when the claim or defense and the action have a common question of law and fact. In exercising its discretion, the court shall consider whether the action will be delayed or whether a party's substantial rights will be prejudiced (CPLR 1013).