Mars v. Beyen

Order and judgment (one paper), Supreme Court, New York County (William J. Davis, J.), entered on or about February 23, 2004, which, to the extent appealed from, granted the petition insofar as to appoint petitioner Arnold J. Mars, D.M.D., as guardian of the person and property of Saul Mars, unanimously affirmed, without costs.

Since the evidence showed that petitioner, a member of the family of Saul Mars, was qualified to serve as Mr. Mars’s guardian, the court’s decision not to follow the recommendation of the court evaluator to appoint a neutral third party was appropriate (see Matter of Dietz, 247 App Div 366, 367 [1936]; see also Matter of Gustafson, 308 AD2d 305, 307 [2003]). Although *92the record indicates that, of Saul Mars’s children, respondent-appellant daughter played the more substantial role in seeing to his care, and that the parents preferred that she rather than petitioner son handle their financial and personal matters if they became incapacitated, the record also provided indication that respondent-appellant’s interests came into conflict with those of her father when decisions respecting expenditures for her father’s care arose. Accordingly, the determination that petitioner should serve as his father’s guardian is supported by the evidence and is not contrary to Mental Hygiene Law § 81.19 (b) and (d) (1) and § 81.17.

We have considered respondent-appellant’s remaining contentions and find them unavailing. Concur—Nardelli, J.E, Mazzarelli, Andrias, Friedman and Gonzalez, JJ.