Matter of Anonymous A (Anonymous B)

Supreme Court, Nassau County

Decided on July 6, 2026

Index No. 850197/2026

Gary F. Knobel, J.

The joint trial conducted by this Court on June 15 and 16, 2026, on the narrow issue of capacity, in the first phase of these acrimonious proceedings pursuant to Article 81 of the Mental Hygiene Law, has presented procedural and evidentiary issues which frequently occur in guardianship proceedings but have not been specifically elaborated on by our appellate courts: the extent hearsay should be stricken from a court evaluator's report admitted into evidence, and whether a court evaluator and an attorney who is a temporary guardian should be allowed to cross- examine witnesses at the trial or the hearing. The latter question has not been addressed by the legislature in Article 81.

Moreover, these particular proceedings illustrate the spectrum of cognitive deficits - from severe to unstable - on the issue of capacity that the trial courts wrestle with in guardianship proceedings, often without the assistance of medical evidence because of the application of the rules of evidence^FN1 and appellate precedent. This Court previously divided both proceedings ^FN2 into four phases due to: (1) the contentious sibling rivalry between the petitioner and two cross-petitioners,^FN3 the sons of the alleged incapacitated persons ("AIP"), Anonymous B (their father, who built a commercial real estate empire) and Anonymous D (their artistic mother); and (2) in view of the hotly contested issues which need to be determined: whether B and D had capacity at the time of the purported execution of advance directives on April 3, 2025, whether permanent guardians should be appointed for the personal and very complicated property management [*2]needs of A and D, and if so, who should be those guardians.

The determinations on the issue of capacity in a contested guardianship proceeding are further complicated by the procedural restrictions placed upon the petitioner - not by Article 81 of the Mental Hygiene Law — but by the principles of law established by the Appellate Division, Second Department, in its succinct guardianship decision in 2003, Matter of Rosa B.-S. [William M.B.], 1 AD3d 355, 356, 767 N.Y.S.2d 33 [2d Dept 2003]. Although the Rosa court conceded and acknowledged that "a guardianship proceeding [itself] places the alleged incapacitated person's medical and mental condition in controversy," the court reasoned, based upon the statutory physician-patient privilege rule in CPLR § 4504 and the seminal Court of Appeals holding in Dillenbeck v Hess, 73 NY2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989], that the target of the proceeding, the alleged incapacitated person - in contrast to a plaintiff in a personal injury action - has not, by merely being a respondent, waived the privilege and placed his or her medical or physical condition into controversy.

In Dillenbeck, a non-guardianship tort case decided before the enactment of Article 81 in 1992 and its effective date in April, 1993, the Court of Appeals declined to allow the disclosure of the defendants' physical condition and blood alcohol content detailed in a hospital record following a fatal car accident, even though the Court found that the defendant's condition was "in controversy," since the information sought fell within the scope of the physician-patient privilege set forth in CPLR § 4504 , and the defendant did not waive the privilege "simply by denying the allegations in the complaint" (Dillenbeck v. Hess, 73 NY2d 278, 288-289 [1989][emphasis added]). The court in Rosa analogized the Court of Appeals rationale to the guardianship proceeding on appeal before it and concluded that "[t]he trial court improperly allowed testimony from the appellant's former physician regarding his treatment of her in violation of the doctor-patient privilege, as the appellant neither waived the privilege nor affirmatively asserted her mental condition at trial (see CPLR § 4504; Dillenbeck v Hess, supra at 286-287 [citations omitted] [emphasis added]" (Matter of Rosa B.-S. [William M.B.], 1 AD3d 355, 356, 767 N.Y.S.2d 33 [2d Dept 2003].

The application of this principle in Article 81 guardianship proceedings, in conjunction with due process concerns to protect the civil liberties of alleged incapacitated persons, who are not accused of committing a wrong or a crime, has resulted in the procedural evolution of Article 81 proceedings to be quasi-criminal and adversarial in practice and procedure, yet also collaborative^FN4 when attempting to implement what is in the best interests ^FN5 of the alleged [*3]incapacitated person (see Matter of Aida C., 44 AD3d 110, 115, 840 N.Y.S. [4th Dept. 2007]). The alleged incapacitated person is not required to file an answer, and can merely state on the record, through counsel or by himself or herself, that he or she does not want a guardian. That denial is not, as Rosa and Dillenbeck have held, a waiver of the physical-patient privilege.

Thus, the petitioner cannot proffer medical evidence by the AIP's treating physician in support of the petitioner's direct case (Matter of Rosa B.-S. [William M.B.], supra at 356), nor is medical evidence necessary to prove incapacity (see Matter of John M. (Rebecca L.—Helen E.), 234 AD3d 487, 488, 225 N.Y.S.3d 218 [1st Dept. 2025]; Matter of Bess Z., 27 AD3d 568, 569, 813 N.Y.S.2d 140, [2d Dept 2006]). Instead, petitioners must establish their claim that the alleged incapacitated person is in need of a guardian by clear and convincing circumstantial evidence (Matter of Elizabeth TT. (Suzanne YY.--Elizabeth ZZ.), 177 AD3d 20, 26; 107 N.Y.S3d 500, 2019 NY App. Div. LEXIS 6676, 2019 NY Slip Op 06667, 2019 WL 4492500 [3d Dept 2019]; Matter of Aida C., 44 AD3d 110, 115 [4th Dept. 2007]).

It is important to note that that the Rosa court, and the Appellate Division cases which have followed its precedent, could have interpreted applicable Article 81 statutes instead of utilizing the Dillenbeck criteria in determining whether Article 81 waives the respondent AIP's physician-patient privilege. This is especially so since Mental Hygiene Law § 81.09 [c][xvii][7]) permits a court evaluator to retain "an independent medical expert where the court finds it is appropriate" (Matter of Elizabeth TT. (Suzanne YY.--Elizabeth ZZ.), 177 AD3d 20, 26), and Mental Hygiene Law 81.09(d) specifically waives the privilege when a court evaluator seeks to review the AIP's medical records (see Matter of Kufeld, 51 AD3d 483, 484, 589 N.Y.S.2d 119 [1st Dept. 2008]). Subsection (d) states in relevant part that

"[t]he court evaluator may apply to the court for permission to inspect records of medical, psychological and/or psychiatric examinations of the person alleged to be incapacitated; except as otherwise provided by federal or state law, if the court determines that such records are likely to contain information which will assist the court evaluator in completing his or her report to the court, the court may order the disclosure of such records to the court evaluator, notwithstanding the physician/patient privilege, the psychologist/patient privilege, or the social worker/client privilege . . . [emphasis [*4]added]."

(Mental Hygiene Law § 81.09[d]). Moreover, the Legislature, in creating the hearing procedure in Mental Hygiene Law § 81.11, could have specifically permitted medical evidence in petitioner's direct case, and address the alleged incapacitated person's protections, or lack thereof, at trial. Instead, neither the petitioner nor the alleged incapacitated person are mentioned at all, and the statute simply states basic trial procedure in subsection (b):

"any party to the proceeding shall have the right to:

1. present evidence;

2. call witnesses, including expert witnesses;

3. cross examine witnesses, including witnesses called by thecourt;

4. be represented by counsel of his or her choice."

(Mental Hygiene Law § 81.11(b) [emphasis added]). The Legislature could have also permitted medical evidence in support of the petitioner's allegations when discussing the criteria and standards that need to be established by the petitioner for the appointment of a guardian in Mental Hygiene Law § 81.02(b):

(b) The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property management; and2. the person cannot adequately understand and appreciate the nature and consequences of such inability.

(c) In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of . . .

(ii) any physical illness and the prognosis of such illness; (iii) any mental disability, as that term is defined in section 1.03 of this chapter, alcoholism or substance dependence as those terms are defined in section 19.03 of this chapter, and the prognosis of such disability, alcoholism or substance dependence; and (iv) any medications with which the person is being treated and their effect on the person's behavior, cognition and judgment.

Mental Hygiene Law § 81.02 [b] [emphasis added]).

Consequently, the Legislature's failure to clearly delineate what is or what is not permissible with respect to the AIP's rights and proper trial procedure under Article 81 has led trial and appellate courts to use their discretion to fill in the gaps created by the Legislature's [*5]omissions. For example, the alleged incapacitated person cannot be called by the petitioner "to testify against his or her own interests," or "be forced to undergo a neuropsychological examination" (Matter of Elizabeth TT. (Suzanne YY.--Elizabeth ZZ.), 177 AD3d 20, 26; Matter of Aida C., 44 AD3d 110, 115 [4th Dept. 2007]); compare, e.g., Conservatorship of Mitchell, 114 Cal.App.3d 606, 611-612, 170 Cal.Rptr. 759 [1981]).

Similarly, trial courts are required to regularly use their considerable discretion in deciding the extent of a court evaluator's and a temporary guardian's participation at trial, as well as the question of the disclosure of the court evaluator's report and its admissibility at trial since it is replete with unsworn hearsay statements. The result has been a lack of uniformity among trial courts in resolving these issues since there is little statutory or precedential guidance.

During the trial at bar, there were objections made by the co-temporary guardian, John Newman, Esq., to the admission of the court evaluator's report pertaining to Anonymous B. There were also objections to the scope of Newman's cross-examination of the court evaluator.

"[T[he court evaluator is empowered to assist the court in independently assessing the totality of circumstances affecting the IP . . . "(Matter of Domenica P., 159 AD3d 954, 960 [dissenting op Barros, J.] [2nd Dept. 2018]). The court evaluator's reports for the first phase of the trial of this proceeding focused exclusively on the issue of Anonymous B and Anonymous D's capacity at the time of the filing of the guardianship petition by Anonymous A on March 11, 2026. The court is required by statute to consider the reports in assessing whether a guardian should be appointed for the alleged incapacitated person (see Mental Hygiene Law §§ 81.02[a][2], 81.09[c][5]). Mental Hygiene Law § 81.12(b) states that

"The report of the court evaluator may be admitted in evidence if the court evaluator testifies and is subject to cross examination; provided, however, that if the court determines that information contained in the report is, in the particular circumstance of the case, not sufficiently reliable, the court shall require that the person who provided the information testify and be subject to cross examination."

(Mental Hygiene Law § 81.12[b]).

The court evaluator testified about her reports, and was subject to probing cross-examination about her report on Anonymous B. This Court admitted the report regarding Anonymous B in its entirety, over the objection of temporary co- guardian Newman, on the ground that the hearsay contained therein was sufficiently reliable (see, Law Revision Commission Comments Mental Hygiene Law § 81.12 [1992]).

Although there is no statutory or precedential authority to allow the court evaluator to cross-examine witnesses, this Court permitted both the court evaluator and the temporary co-guardians to cross-examine the witnesses at trial in the interests of justice and to assist the court in determining, if necessary, the best interests of the alleged incapacitated persons. The Court notes that it sustained an objection to an improper question posed by co-temporary guardian Newman.

Turning to the main issue in this phase of the trial, Anonymous B and D's purported lack of capacity at the time of the filing of the initial petition, the Court notes that neither Anonymous [*6]B nor Anonymous D appeared in person, or virtually via Microsoft Teams or through the pilot program software, NY-VCAP. Their appointed attorneys requested in advance of the trial that their appearances be dispensed with, and no party or attorney objected to this Court conducting the trial in their absence (see, Matter of Rachel Z. (Jack Z. - - Anna B.), 181 AD3d 805, 806, 120 NYS3d 371 [2nd Dept. 2020]).

The Court instead heard extensive testimony from petitioner middle son Anonymous A and cross-petitioner oldest son Anonymous E; cross-petitioner youngest son, Anonymous F, did not testify. Anonymous B and D's grandson, the son of Anonymous E, also testified. The court evaluator was the last person to testify. They all testified about the physical and mental health of Anonymous B and D.

Anonymous D, whose 83rd birthday will occur shortly, unfortunately has had recent hospitalizations and medical procedures due to inter alia dehydration and serious medical issues. She is wheelchair bound, suffers from Parkinson's disease, and is virtually non-verbal. However, there was testimony that on one occasion that when she was able to talk, she asked if Anonymous F was still in school or home from school, even though F has not been in school in decades. The testimony adduced during the trial clearly demonstrated that unfortunately Anonymous D has significantly deteriorated from the vibrant mother and grandmother her children and grandson experienced throughout their lives. Thus, this court finds that Anonymous D could not have meaningfully participated in this phase of the trial and her appearance in this proceeding is therefore waived. Furthermore, based on these facts, petitioner A and cross-petitioner E have established by clear and convincing evidence that Anonymous D was incapacitated as of the time of the filing of the petition on March 11, 2026, and lacks the understanding or appreciation of the nature and consequences of her functional limitations (see Mental Hygiene Law § 81.02 [b] [1],[2]; see Matter of Ardelia R., 28 AD3d 485, 486 [2nd Dept. 2006]).

Anonymous B chose not to testify even though, through his court appointed counsel, and as testified to by the court evaluator, B opposed the guardianship proceeding and the appointment of a guardian for him, directed his ire at petitioner Anonymous A, although each of his sons filed petitions for the appointment of a guardian for B. Perhaps that passion was a reflection of B's disappointment in Anonymous A, or B's attempt, as advocated by poet Dylan Thomas, to "not go gentle into that good night." Anonymous B was a Depression era child who through hard work and intelligence acquired extensive commercial real estate properties throughout the United States, and purportedly created innovative real estate investment vehicles, such as wrap-around mortgages. However, in stark contrast, there was extensive testimony portraying a 92 year-old man whose mental acuity was unstable, who slept the majority of the day at home in a hospital bed, and had short and long-term memory lapses, e.g., he did not recognize family members at times; he asked if his parents were alive, despite being deceased for over 40 years; he didn't remember what a wrap-around mortgage was, or meeting multiple Presidents at the White House on multiple occasions.

Consequently, although every witness testified that they could easily have a conversation with Anonymous B, this Court finds that the degree of cognitive capacity, or incapacity, that [*7]Anonymous B possesses can fluctuate at any given moment. In view of the testimony adduced as set forth above, and given the rigors and the physical and mental stress of all-day trial, the request by court-appointed counsel to waive Anonymous B's appearance during this phase of the trial, as well as the next phases of the trial, is granted. Moreover, the unrebutted testimony and the court evaluator's report, which was admitted into evidence, satisfied petitioner A's and cross-petitioner Anonymous E's burden of proof, and established by clear and convincing evidence Anonymous B's incapacity and functional limitations -currently and at the time of the filing of the petition — which impair his ability to manage his own affairs (see Mental Hygiene Law § § 81.02 [b], 81.12(a); see Matter of Laurent G. (Alexander G.), 206 AD3d 996, 997, 168 N.Y.S.3d 847 [2nd Dept. 2022]; Matter of Carolyn S. (Gaylor), 192 AD3d 1114, 1116, 141 NYS3d 358 [2nd Dept. 2021]; Matter of Marie H., 25 AD3d 704, 707-708, 811 N.Y.S.2d 708[2nd Dept. 2004]).

Accordingly, it is

ORDERED and ADJUDGED that this Court finds that Anonymous B was an incapacitated person, pursuant to Mental Hygiene Law § 81.02, at the time of the filing of the petition under index number 850197/2026, and remains one at the present time, and it is further

ORDERED and AJUDGED that this Court finds that Anonymous D was an incapacitated person, pursuant to Mental Hygiene Law § 81.02, at the time of the filing of the petition under index number 850198/2026, and remains one at the present time, and it is further

ORDERED that the next phase of the trial of this proceeding — whether Anonymous B and Anonymous D were incapacitated on April 3, 2025 (see, e,g, Matter of Rachel Z. (Jack Z.—Anna B)., supra at 806) will begin on September 14, 2026, at 10 a.m., and continue day-to-day until completion.

The foregoing constitutes the decision, order and judgment of this court.

Dated: July 6, 2026

HON. GARY F. KNOBEL, J.S.C.