| Matter of Jean G.S. |
| 2009 NY Slip Op 00851 [59 AD3d 998] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of the Application of James R. Gough, Respondent,for the Appointment of a Guardian for Jean G.S., an Alleged Incapacitated Person, Respondent.Dibble & Miller, P.C., Appellant. |
—[*1] Woods Oviatt Gilman LLP, Rochester (Christian N. Valentino of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.),entered April 30, 2008 in a proceeding pursuant to Mental Hygiene Law article 81. The orderdenied the order to show cause of Dibble & Miller, P.C.
It is hereby ordered that the order so appealed from is unanimously affirmed with costs.
Memorandum: Petitioner commenced this proceeding seeking the appointment of a guardianfor his mother, an alleged incapacitated person (AIP). Appellant, a nonparty law firm, appealsfrom an order denying its order to show cause seeking, inter alia, to vacate that part of a priororder requiring appellant to refund $22,401.55 to the AIP's trust account. We note at the outsetthat, contrary to petitioner's contention, the order is appealable as of right. Even assuming,arguendo, that appellant moved by order to show cause for leave to reargue that part of the priormotion requiring it to reimburse the AIP's trust account, we note that Supreme Court in factgranted leave to reargue and, upon reargument, adhered to its prior decision, thus rendering theorder appealable as of right (see CPLR 5701 [a] [2] [viii]; Grasso v Schenectady County Pub.Lib., 30 AD3d 814, 816 n 1 [2006]; Marine Midland Bank v Fisher, 85 AD2d905 [1981]).
We reject appellant's contention that the court erred in denying the order to show cause. Amovant seeking to vacate a prior order pursuant to CPLR 5015 (a) must establish one of thestatutory grounds, which include excusable default, newly discovered evidence, and fraud,misrepresentation, or other misconduct by an adverse party. It is the movant's burden "to showthat the prior order[ ] should be set aside by submission of sufficient evidence supporting thegrant of such relief" (Matter ofCommissioner of Social Servs. of Ulster County v Powell, 39 AD3d 946, 948 [2007],lv dismissed 9 NY3d 975 [2007], rearg denied 10 NY3d 737 [2008]) and, here,appellant failed to meet that burden. Present—Smith, J.P., Centra, Fahey, Green and Pine,JJ.