The following numbered papers were considered on this Motion by Robert D.("Robert"), the father of the Alleged Incapacitated Person, appearing pro se, for an order dismissing the petition pursuant to (1) CPLR 3211 (a) [2],[3],[5],[6],[7],[8] the Full Faith and Credit Clause of the United States Constitution (3) doctrines of Res Judicata and Collateral Estoppel and (4) several subsections of Mental Hygiene Law ("MHL") Article 83.

On December 20, 2022, Petitioner Geneva D.(Geneva) commenced the instant proceeding pursuant to Mental Hygiene Law Article 81, seeking an order appointing her and Carol B. (mother of BRANDON D.) as Co-Guardians of the Person and Property of her brother BRANDON D. (Brandon) in New York. The Petition alleges, among other things, that Robert D. (Robert), father of Brandon, prevented Geneva from participating in Brandon's care plan meetings, intimidated and harassed staff members at the facility in which Brandon is residing, and interfered with Brandon's medical care in a way that was detrimental to his health and well- being.

The Petition alleges that in March of 2022, Brandon, the Alleged Incapacitated Person herein, suffered from a subarachnoid hemorrhage, caused by a ruptured aneurysm which resulted in a severe traumatic brain injury. Brandon was hospitalized at West Jefferson Medical Center On March 18, 2022, Geneva and nonparty Jennifer Herring (sister of Brandon) brought an interdiction ^[FN1] proceeding in Louisiana (Index Number 826-351), seeking to be appointed curators ^[FN2] of Brandon. On April 15, 2022, Robert, cross-moved and requested that he be appointed the curator. On May 31, 2022, the Louisiana Court appointed a Louisiana attorney, Elaine Appleberry ("Appleberry"), as Curator Ad Hoc for Brandon.

The Petition alleges that subsequent to her appointment, Appleberry informed that Louisiana Court that Robert had brought Brandon to New York and had him admitted to the Traumatic Brain Injury program unit at Queens Nassau Nursing and Rehabilitation Center, located in Queens, New York.

There has been nothing presented to this Court in the Petition or instant Motion that Robert requested permission from the Louisiana Court to move Brandon to New York.

On October 25, 2022, more than five months after Brandon was moved unilaterally to New York, the Louisiana Court issued a decree appointing Robert as Curator and Geneva as undercurator of Brandon.

A preliminary conference in this proceeding was held on the record on January 30, 2023, during which Andrew Kramer, Esq. ("Kramer") appeared on behalf of Robert. The Court determined that Kramer had improperly accessed and disseminated the E-file pursuant to Uniform Rule 202.5-b by consenting as counsel to BRANDON D.,^[FN3] and temporarily disqualified Kramer from appearing on behalf of Robert. On February 1, 2023, the Court issued an order sealing the record, appointing Geneva and Charles Barbuti, Esq. (a Part 36 appointee) as Temporary Co- Guardians of the Person and Property of Brandon, and directing that Brandon not be removed from Queens Nassau Nursing and Rehabilitation Center, except in an emergency. An additional Emergency Order to Show Cause was filed on February 2, 2023, due to allegations from the facility that Robert was threatening them and interfering with Brandon's care. The Order to Show Cause was signed on February 3, 2023, issuing a Temporary Restraining order enjoining Robert from visiting Queens Nassau Nursing and Rehabilitation Center.

On February 7, 2023, Robert filed a pro se motion to dismiss (Seq. 3). On February 9, 2023, the court held a settlement conference on the motion, during which the court allowed Kramer to continue as counsel to Robert. After the conference, parties agreed that, during the pendency of the proceedings, (1) Kramer would not be restricted in any way to continue to act as counsel to Robert in the New York proceedings; (2) the temporary restraining order prohibiting Robert from visiting Brandon would be vacated; (3) the application to remove Geneva on as undercurator in the Louisiana proceeding would be withdrawn; (4) Abraham Mazloumi Esq. (Mazloumi) a Part 36 fiduciary would act as an independent Guardian and direct all of Brandon's medical care; (5) Robert would withdraw his pro se motion to dismiss, without prejudice; (6) Robert would properly file a motion in Louisiana allowing for the transfer of the guardianship to New York, then file such order in New York pursuant to MHL § 83.33 (c); and (7) Mazloumi, would be appointed as as independent successor temporary guardian. These directives were issued in an order dated February 14, 2023.

Thereafter Kramer informed the Court that he no longer represented Robert in New York. However, the Court learned that Kramer continued to represent Robert in Louisiana on the motion to remove Geneva as undercurator, and moved for contempt against Geneva, despite the agreement on the record to withdraw the motion. On March 15, 2023, Robert, pro se filed the instant motion to dismiss (Sq 8.). The motion was calendared in conjunction with the pending Order to Show Cause to appoint a guardian.

Robert's papers state CPLR 3211 [a][2][3][5][6][7][8] as grounds for dismissal, however he fails to make any arguments regarding CPLR 3211 [a][3] [6] or [8]. Therefore, those subsections will not be considered by this Court.

Robert moves for dismissal on the ground that the New York State Supreme Court lacks subject matter jurisdiction over the causes of action asserted in the Petition pursuant to CPLR§3211[a][2].

This argument is unpersuasive. New York currently provides multiple distinct statutory schemes, namely Section Article 81 of the Mental Hygiene Law and Article 17-A of the Surrogates Court procedure Act under which a personal or property guardian may be appointed for, and exercise power over, a disabled adult.

Brandon has been living in New York for over a year and resides at Queens Nassau Nursing and Rehabilitation Center, located in Queens, New York. Pursuant to MHL § 81.04 [a][1], this Court has jurisdiction over any "resident of the state". Moreover, MHL § 81.05 [a] provides that "[a] proceeding under this article shall be brought in the supreme court within the judicial district, in which the person alleged to be incapacitated resides or is physically present." Brandon is a resident of the State New York and is physically present in Queens County, thus affords this Court subject matter jurisdiction over this matter. (See In re Mary S., 234 AD2d 300 [2d Dept 1996]).^[FN4]

Robert moves for dismissal on the ground that the Petition fails to state a cause of action for which relief may be granted (CPLR §3211 [a][7]). On a motion to dismiss pursuant to CPLR §3211 [a][7], the court must afford the pleadings a liberal construction and accept the facts alleged in the complaint as true, according to the plaintiff the benefit of every favorable inference (Morone v. Morone, 50 NY2d 481, 484 [1980]).

The Petition alleges that Brandon is an incapacitated person in need of a Guardian pursuant to Article 81, due to his functional limitations and is incapable of managing his personal or financial affairs. As such, the Court holds that the relief requested in the Petition is sufficiently pleaded.

Robert argues that the Full Faith and Credit Clause of the US constitution be applied to this matter and that the court must follow the decision of the Louisiana court appointing him as curator.

It is well settled that the Full Faith and Credit Clause of the US constitution does not require one state to follow the guardianship orders [or any other modifiable protective orders] of another state. (Stock v Mann, 255 NY 100 [1930]).

Federal Courts have abstained from determining Constitutional matters relating to guardianship proceedings and from exercising jurisdiction over them as such matters are within the province of the state (See Younger v. Harris 401, U.S. 37 [1971]). Further, "states have an especially strong interest" in "state court procedure in guardianship proceedings" (See Disability Rts. NY v. New York, 916 F.3d 129, 136 [2d Cir. 2019]).

Thus, guardianship orders made in one state are not enforceable in another state without proper procedure. Therefore, Robert's argument is without merit.

Robert argues that the Article 81 proceeding should be dismissed pursuant to CPLR 3211 [a] [4] [5] the doctrines of res judicata and collateral estoppel. To the extent that defendant's motion is predicated upon dismissal pursuant to CPLR 3211 subdivision [a] [5] it was not timely made. However, the Court will still consider the merits of such argument.

The doctrine of res judicata bars a subsequent litigation if "a valid final judgment bars future actions between the same parties on the same cause of action" (See Seidenfeld v Zaltz, 162 AD3d 929, 931-932; see also Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343 [1999]; Matter of Hunter, 4 NY3d 260 [2005]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 308 [1979]). Similarly a holding [or finding] of Res Judicata requires that there be a judgment on the merits from a prior action between the same parties involving the same subject matter (See Matter of Josey v. Goord, 9 NY3d 386 [2007]; Matter of Hunter, 4 NY3d 260 [2005]; Puryear v Hutchinson, 175 AD3d 521 [2019]).

The related doctrine of collateral estoppel, precludes a party from relitigating a particular issue where the identical issue has already been decided in the prior action, is decisive in the present action, and where the party to be precluded had a full and fair opportunity to contest the issue in the prior proceeding (See Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64 [2018]; Buechel v Bain, 97 NY2d 295 [2001]; Ryan v New York Tel. Co., 62 NY2d 494 [1984]).

Robert has failed to meet the burden of proof for the doctrines of Res Judicata or Collateral estoppel. There has been nothing presented to the Court regarding any underlying substantive matters. Robert failed to provide any pleadings, transcripts, or certified decisions from any other courts, including the curatorship proceeding, save a bare copy of the interdiction order.

Robert makes various arguments as to why the Article 81 petition should be dismissed pursuant to MHL 83.01-83.45 (Article 83). Robert contends his appointment in Louisiana as curator should automatically deem him the Guardian of the Person and Property of Brandon in New York. This argument is without merit. If an Incapacitated Person has a foreign guardian but is residing in New York, the guardian must first register the foreign judgment or transfer the judgment to New York. "[To] confirm transfer of a guardianship of the person or guardianship of the property transferred to this state under provisions similar to section 83.31 of this article, the guardian of the person or guardian of the property must petition the court in this state pursuant to article eighty-one of this title or article seventeen-A of the Surrogate Court Procedure Act to accept the guardianship of the person or guardianship of the property. The petition must include a certified copy of the other state's provisional order of transfer." [MHL §83.33[a], (emphasis added).

During the February 7, 2023 conference and hearing this court explained this proceeding to Robert and his attorney, and directed Robert and his attorney to properly file a motion pursuant to MHL § 83.33 in the February 14, 2023 order. Robert was afforded more than ample [*2]opportunity avail himself of the Article 83, yet to date, no petition has been filed.

Even if Robert had made such application to this Court, it is within the Court's authority to decline to grant comity to a foreign guardianship decision if it is unsatisfied that the foreign jurisdiction affords the alleged incapacitated person substantially similar due process and substantive rights that exist under New York's Mental Hygiene Law. (See Matter of Gabr, 39 Misc 3d 746, 750 [Sup Ct, Kings County 2013]). Moreover, pursuant to MHL § 83.33[a-h] this Court has ample authority to deny a guardianship judgment from another state, even for a procedural defect. (See Matter of B.A.M.W. [C.M.W.], 44 Misc 3d 465, 466 [Sup Ct, Dutchess County 2014]).

Brandon lives in New York and is cared for in New York and his care is being paid for by New York Medicaid. Robert's Louisiana Curatorship is not properly before this Court, and his attempts to hide behind a foreign judgment and evade proper procedure is a waste of judicial resources.

In accordance with the foregoing, it is hereby

ORDERED that the motion to dismiss [Seq. No. 8] brought by Robert D. the pro se litigant, is denied in its entirety.