Matter of Wallace, 2009 NY Slip Op 00593 [59 AD3d 171]

February 3, 2009

Appellate Division, First Department

— [*1]

Barasch McGarry Salzman & Penson, New York (Dana Cutting of counsel), for appellant.

The Turkewitz Law Firm, New York (Eric Turkewitz of counsel), for respondents.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered May 4, 2007, which dismissed petitioner’s petition to be appointed the guardian over the person and property of his wife, Veronica Wallace, an alleged incapacitated person (AIP), and granted the cross petition of Corlinda Nicholson to be appointed the guardian over the person and property of her sister, the AIP, unanimously reversed, on the law, without costs, the petition reinstated, the grant of the cross petition vacated, and the matter remanded for a hearing on the petition.

We express no opinion on the merits of petitioner’s application. However, we disagree with Supreme Court that petitioner, a paroled convicted felon who had obtained a temporary certificate of relief from disabilities, could not, as a matter of law, serve as guardian for the AIP. Rules of the Chief Judge (22 NYCRR) § 36.2 (c) (7) contains no distinction between the rights conferred to an individual issued a temporary certificate of relief from disabilities (one issued while an individual is on parole) ( see Correction Law § 703 [4]) and those same rights which cease being temporary when the individual is released from parole ( id. ).

The court’s apparent exclusion of petitioner from the hearing on the cross petition was improper. Although the parties dispute whether petitioner and the AIP were married, the [*2] evidence that the couple resided together for several years and had two children together made such exclusion improper. Concur—Gonzalez, J.P., Buckley, Catterson, McGuire and Acosta, JJ..