In re Flight , 744 N.Y.S.2d 920 ( 2002 )

Appeal from an order and judgment (one document) of Supreme Court, Monroe County (Galloway, J.), entered December 18, 2001, which appointed Robert Flight as guardian for Edward D. Flight.

It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, Robert Flight is appointed as respondent’s guardian pending the outcome of the hearing and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding under article 81 of the Mental Hygiene Law seeking appointment of a guardian to provide for the personal needs and property management of respondent. Supreme Court properly determined under the circumstances that petitioner was not entitled to discontinue the proceeding pursuant to CPLR 3217 (a) (1) (see Matter of Spadafora, 54 Misc 2d 123, 125, affd 29 AD2d 742; see generally 7 Weinstein-Korn-Miller, NY Civ Prac 3217.05). The court erred, however, in appointing a guardian for respondent without conducting a hearing (see Mental Hygiene Law § 81.11 [a]; Matter of Hoffman, 288 AD2d 892, 893; Matter of Ruth TT., 267 AD2d 553, 554-555). We therefore reverse the order and judgment and remit the matter to Supreme Court, Monroe County, to conduct a hearing on the petition and make the requisite findings (see § 81.15), including findings with respect to the choice of guardian (see Matter of Pasner, 215 AD2d 763). We appoint Robert Flight as respondent’s guardian pending the outcome of the hearing (see Hoffman, 288 AD2d at 893). Present — Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.