Banks v. Ruth B. — 135 A.D.3d 667

Majority

p. 667

In the Matter of Steven Banks, Respondent, v Ruth B., a Person Alleged to be Incapacitated, Appellant.

[23 NYS3d 575]

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

p. 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 NY2d 827 , 828 [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 been submitted (see e.g. Copp v Ramirez, 62 AD3d 23 , 28 [1st Dept 2009], lv denied 12 NY3d 711 [2009]). Concur— Tom, J.P., Sweeny, Gische and Kapnick, JJ.

Cases cited

Sedita v. Board of Education 43 NY2d 827 N.Y. 1977-12-21 at 828 p. 668
Copp v. Ramirez 62 AD3d 23 N.Y. App. Div. 2009-02-24 at 28 p. 668