| Matter of Sylvia G. (Carniello—Marlowe) |
| 2016 NY Slip Op 03738 [139 AD3d 851] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Sylvia G. Robert Carniello,Respondent; Jeremy Marlowe, Appellant. |
Cohen & Schwartz, LLP, Manhasset, NY (Michael Kohan of counsel), forappellant.
Law Offices of Kenneth J. Weinstein, P.C., Garden City, NY (Michael J. Langer ofcounsel), for respondent.
In a guardianship proceeding in which Robert Carniello, the guardian of the personand property of Sylvia G., an incapacitated person, inter alia, petitioned pursuant toMental Hygiene Law § 81.43 to recover the proceeds of certain investmentaccounts withheld from the incapacitated person, Jeremy Marlowe, as Administrator ofthe Estate of Richard G., appeals, as limited by his brief, from (1) so much of an order ofthe Supreme Court, Nassau County (Phelan, J.), entered April 1, 2013, as, upon RichardG.'s failure to appear at a hearing, granted that branch of the petition which was to directthat the entire proceeds of the investment accounts be turned over to Robert Carniello, asguardian of the person and property of Sylvia G., and (2) so much of an order of thesame court dated April 28, 2014, as denied those branches of his motion which werepursuant to CPLR 317 and 5015 (a) (1) to vacate so much of the order entered April 1,2013, as directed that the entire proceeds of the investment accounts be turned over toRobert Carniello, as guardian of the person and property of Sylvia G.
Ordered that the appeal from the order entered April 1, 2013, is dismissed; and it isfurther,
Ordered that the order dated April 28, 2014, is reversed insofar as appealed from, onthe law, and that branch of the motion of Jeremy Marlowe, as Administrator of the Estateof Richard G., which was pursuant to CPLR 5015 (a) (1) to vacate so much of the orderentered April 1, 2013, as directed that the entire proceeds of the investment accounts beturned over to Robert Carniello, as guardian of the person and property of Sylvia G., isgranted; and it is further,
Ordered that one bill of costs is awarded to the appellant.
In or around November 2012, Robert Carniello was appointed as the guardian of theperson and property of Sylvia G., an incapacitated person. Subsequently, Carniello, asguardian of the person and property of Sylvia G. (hereinafter Carniello), filed a petitionpursuant to Mental [*2]Hygiene Law§ 81.43 to recover the proceeds of certain investment accounts allegedlybeing withheld by Richard G., Sylvia G.'s son. The accounts were held in the names ofRichard G. and Sylvia G., as joint tenants with rights of survivorship. On February 20,2013, the Supreme Court conducted a hearing on the petition, at which Richard failed toappear.
Following the hearing, the Supreme Court issued an order entered April 1, 2013,upon Richard's default, inter alia, granting that branch of the petition which was to directthat the entire proceeds of the investment accounts be turned over to Carniello(hereinafter the April 2013 order). In July 2013, Richard died. Thereafter, in an orderdated April 28, 2014, the court denied a motion by Jeremy Marlowe, as Administrator ofthe Estate of Richard G. (hereinafter the appellant), inter alia, pursuant to CPLR 5015 (a)and 317 to vacate so much of the April 2013 order as directed that the entire proceeds ofthe investment accounts be turned over to Carniello.
The appeal from the April 2013 order, made upon Richard's default, must bedismissed, as no appeal lies from an order entered upon the default of the appealing party(see CPLR 5511; Lansky v Bate, 132 AD3d 737, 738 [2015]).
The Supreme Court erred, however, in denying that branch of the appellant's motionwhich was pursuant to CPLR 5015 (a) (1) to vacate so much of the April 2013 order asdirected that the entire proceeds of the investment accounts be turned over to Carniello.A party seeking to vacate a default must demonstrate both a reasonable excuse for thedefault and a potentially meritorious defense (see CPLR 5015 [a] [1]; Scott v Ward, 130 AD3d903, 903-904 [2015]). Here, the documentation submitted by the appellant insupport of his motion, including documentation from Richard's physician and affidavitsfrom his son and former fiancée, demonstrated a reasonable excuse for Richard'sfailure to appear at the hearing, namely, an illness which prevented him from travelingfrom his home in California (see Du Jour v DeJean, 247 AD2d 370, 371 [1998];Matter of McCaffrey v McCaffrey, 210 AD2d 409, 410 [1994]; Matter ofState Div. of Human Rights v North Broadway Holding Corp., 38 AD2d 856 [1972];cf. Matter of Amirah Nicole A.[Tamika R.], 73 AD3d 428, 429 [2010]). Moreover, the appellant's submissionswere sufficient to demonstrate the existence of a potentially meritorious defense as towhether the accounts were created with the intention of conferring a present beneficialinterest in Richard, rather than merely for convenience (cf. Storozynski v Storozynski,60 AD3d 754, 754 [2009]; Wacikowski v Wacikowski, 93 AD2d 885, 885[1983]).
The parties' remaining contentions are without merit or need not be reached in lightof our determination. Dickerson, J.P., Hall, Roman and Sgroi, JJ., concur.
Motion by the respondent to strike stated portions of the appellant's reply brief onappeals from two orders of the Supreme Court, Nassau County (Phelan, J), entered April1, 2013, and dated April 28, 2014, respectively, on the ground that they contain or referto matter dehors the record. By decision and order on motion of this Court dated March30, 2015, the motion was held in abeyance and referred to the panel of Justices hearingthe appeals for determination upon the argument or submission thereof.
[*3] Upon the papers filed in support of the motion and thepapers filed in opposition thereto, and upon the argument of the appeals, it is hereby
Ordered that the motion is granted. The second full paragraph on page 26 of theappellant's reply brief and the related footnote are stricken, and that matter has not beenconsidered in the determination of the appeals. Dickerson, J.P., Hall, Roman and Sgroi,JJ., concur.