BANKS v. RUTH B.

Jan. 28, 2016

135 A.D.3d 667

Supreme Court, Appellate Division, First Department, New York.

In re Steven BANKS, etc., Petitioner–Respondent, v. RUTH B., A Person Alleged to be Incapacitated, Respondent–Appellant.

Jan. 28, 2016.

Attorneys and Law Firms

Advocates for Justice, New York (Arthur Z. Schwartz of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondent.

Opinion *667 Appeal from order and judgment (one paper), Supreme Court, New York County (Tanya R. Kennedy, J.), entered February 26, 2014, inter alia, appointing a guardian for respondent, unanimously dismissed, without costs, as moot. By order entered on or about April 7, 2015, after a hearing attended by respondent, Supreme Court appointed Arthur *668 Schwartz, Esq., as respondent's guardian, with her consent. The New York County Clerk issued a commission to Mr. Schwartz pursuant to that order, and respondent has been discharged from the nursing home in which she had been confined. These events render this appeal moot (see Sedita v. Board of Educ. of City of Buffalo, 43 N.Y.2d 827, 828, 402 N.Y.S.2d 566, 373 N.E.2d 365 [1977] ). Another ground for dismissal is the insufficiency of the appendix (see CPLR 5528[a][5] ), which fails to include certain parts of the record that are relevant and necessary to a determination of the appeal, most notably the transcript of the December 11, 2013 hearing at which respondent's right to appear was allegedly waived and at which proof of incapacity would have **576 been submitted (see e.g. Copp v. Ramirez, 62 A.D.3d 23, 28, 874 N.Y.S.2d 52 [1st Dept.2009], lv. denied 12 N.Y.3d 711, 2009 WL 1543926 [2009] ). TOM, J.P., SWEENY, GISCHE, KAPNICK, JJ., concur.

All Citations 135 A.D.3d 667, 23 N.Y.S.3d 575 (Mem), 2016 N.Y. Slip Op. 00612

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