[*1]
Matter of Nunziata (Nancy K.)
2021 NY Slip Op 50402(U) [71 Misc 3d 1218(A)]
Decided on April 30, 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As corrected in part through May 12, 2021; it will not be published in the printed Official Reports.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 30, 2021
Supreme Court, Nassau County


In the Matter of the Application of Nancy Nunziata, LMSW, Commissioner of the Nassau County Department of Social Services, Petitioner, For the Appointment of a Guardian of Nancy K., An Alleged Incapacitated Person.




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: mailto:[email protected] [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 Order is hereby amended to reflect the correct date of the Order.

WHEREAS, a proceeding was commenced pursuant to Article 81 of the Mental Hygiene Law ("MHL") for the appointment of a guardian of the personal needs and property management [*2]of Nancy K., an alleged incapacitated person (hereinafter sometimes referred to as the "AIP")

WHEREAS, this Court issued an Order dated March 24, 2021, whereby the hearing in this proceeding was trifurcated into three possible phases: (i) whether the alleged incapacitated person is presently an incapacitated person as defined by the MHL Article 81 and needs a guardian; (ii) whether the alleged incapacitated person was incapacitated at the time she executed advance directives and was incapacitated at the time William McEnaney married Nancy K. in November 2020; and (iii) evidence from the cross-petitioner in support of his cross-petition; and

WHEREAS, the Court having further considered the MHL and the necessary elements and issues applicable and pertinent to this proceeding; and

WHEREAS, further Hearings in this matter having been conducted by this Court on March 30, 2021;

NOW, THEREFORE, it is hereby

ORDERED that the order of this Court dated March 24, 2021 (Knobel, J.), which trifurcated this proceeding, is amended and modified as set forth below; and it is further

ORDERED, that this proceeding for the appointment of a guardian for Nancy K., an alleged incapacitated person ("AIP") shall be tried in four phases on the following issues:

Phase I —whether the AIP is presently incapacitated as that term is defined by MHL Article 81;

Phase II - whether the AIP had the necessary level of capacity at the time she executed advance directives in October 2019, and whether the AIP had the necessary level of capacity to enter into a marriage contract at the time she purportedly married William McEnaney in November 2020;

Phase III — in the event that it is determined the AIP had the necessary level of capacity at the time she executed advance directives in October 2019, whether those advance directives are sufficient and reliable to obviate the need for the appointment of a guardian of the AIP, including whether there has been a breach of fiduciary duty by any agent named under a particular advance directive; and

Phase IV — in the event that the appointment of a guardian is deemed necessary pursuant to Article 81 of the MHL, the Court will consider and determine who, among those individuals that are qualified and appropriate, shall be appointed as personal needs guardian and/or property management guardian of and for the Nancy K.; and it is further

ORDERED, that in the event the Court reserves decision with respect to any of the issues at any Phase of the hearing in this proceeding, the hearing shall continue to its next Phase until the hearing is concluded and the parties rest; and it is further

ORDERED, that the hearing in this proceeding shall continue on April 13, 2021, at 10 a.m.



E N T E R:
______________________________
HON. GARY F. KNOBEL, J.S.C.