Matter of Margaret YY. (Mary Ann YY.—Frances UU.)
2012 NY Slip Op 08866 [101 AD3d 1453]
December 20, 2012
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 6, 2013


In the Matter of Margaret YY., a Mentally Retarded and/or Developmentally Disabled Person. Mary Ann YY., Respondent; Frances UU., Appellant, et al., Respondent. (And Two Other Related Proceedings.)

—[*1] Tobin & Dempf, LLP, Albany (Michael L. Costello of counsel), for appellant.

Sukloff & Schanz, Binghamton (Donald M. Sukloff of counsel), for Mary Ann YY., respondent.

Sheila E. Shea, Mental Hygiene Legal Service, Binghamton (A. Laura Bevacqua of counsel), for Margaret YY.

Stein, J. Appeals (1) from an order of the Surrogate's Court of Broome County (Guy, S.), entered October 24, 2011, which, in proceeding No. 1 pursuant to SCPA article 17-A, among other things, granted petitioner's motion to vacate a demand for a jury trial, and (2) from an order of said court, entered December 20, 2011, which, among other things, in proceeding No. 3 pursuant to SCPA article 17-A, appointed Mary Ann YY. as the temporary guardian of Margaret YY.

Margaret YY. is a nonverbal, profoundly mentally retarded adult who resides in a group [*2]facility located in the City of Binghamton, Broome County.[FN1] In 1998, Surrogate's Court (Thomas, S.) appointed Margaret's parents as the coguardians of her person and property and appointed Margaret's sisters—Mary Ann YY. and Frances UU.—as co-standby guardians pursuant to SCPA article 17-A. Margaret's father died in 2006, leaving her mother as the sole guardian.

In January 2011, Mary Ann commenced proceeding No. 1 seeking to remove Margaret's mother as her guardian due to the mother's diagnosis of vascular dementia and seeking to be appointed as sole successor guardian. Frances, along with one of her brothers, respondent Edward YY., filed objections to the appointment of Mary Ann as the sole successor guardian[FN2] and also filed a demand for a jury trial pursuant to SCPA 1754. In October 2011, Surrogate's Court (Guy, S.) granted a motion by Mary Ann to vacate the jury demand. Thereafter, Frances commenced proceeding No. 2 seeking, among other things, appointment as coguardian with Mary Ann.[FN3] Mary Ann subsequently commenced a third proceeding, seeking her appointment as Margaret's temporary guardian. Surrogate's Court granted that application in December 2011. Frances now appeals both orders.[FN4]

We affirm. SCPA 1754 (1) provides, in pertinent part, that "[u]pon a petition for the appointment of a guardian of a mentally retarded or developmentally disabled person [18] years of age or older, the court shall conduct a hearing at which such person shall have the right to jury trial" (emphasis added). Assuming, without finding, that this statute applies to proceedings for the appointment of a successor guardian,[FN5] when we construe it "so as to give effect to the plain meaning of the words used" (Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 675 [1988] [internal quotation marks and citations omitted]; see Riley v County of Broome, 95 NY2d 455, 462-463 [2000])—which we find to be clear and unambiguous—we can only conclude that the right to a jury trial belongs solely to the subject of the guardianship [*3]proceeding, not to any other party. Thus, Frances (and Edward) lacked standing to demand a jury trial and Surrogate's Court properly granted Mary Ann's motion to vacate their demand.

Frances's remaining contentions have been considered and found to be unavailing.

Mercure, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the orders are affirmed, without costs.

Footnotes


Footnote 1: Margaret is represented herein by Mental Hygiene Legal Service.

Footnote 2: Although Frances does not dispute either the need to replace the mother as sole guardian or petitioner's qualifications to act as Margaret's successor guardian, she asserts that she has an equal right to be coguardian.

Footnote 3: Surrogate's Court treated the previously filed demand for a jury trial as applying to all pending issues and proceedings in connection with the guardianship of Margaret.

Footnote 4: Frances asserts in her appellate brief that the December 2011 order was "appealed for the purpose of preserving, without prejudice, the rights of all parties subject to a subsequent jury trial on the factual issues involving the designation of successor guardian."

Footnote 5: As Surrogate's Court noted, the pending proceedings do not concern Margaret's need for a guardian, only "who is (or are) the most appropriate successor guardian(s) and standby guardian(s) for [her]" (see generally SCPA 1755).