[*1]
Matter of Nunziata (Nancy K.)
2021 NY Slip Op 50401(U) [71 Misc 3d 1217(A)]
Decided on April 15, 2021
Supreme Court, Nassau County
Knobel, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through May 12, 2021; it will not be published in the printed Official Reports.


Decided on April 15, 2021
Supreme Court, Nassau County


In the Matter of 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



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:  [email protected]

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:[email protected]

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: [email protected]

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: [email protected]

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: [email protected]

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: [email protected]

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: [email protected]

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: [email protected]


Gary F. Knobel, J.

The following papers having been read:



Notice of Motion/Order to Show Cause 1

Cross Motion/Answering Affidavits2

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.



E N T E R

DATED: April 15, 2021

HON. GARY F. KNOBEL

J.S.C.