Kraft v. Ziskind

Judgment, Supreme Court, Special Term, New York County, entered March 15, 1977, granting petition appointing a conservator pursuant to paragraph 77 of the Mental Hygiene Law unanimously reversed, on the law and on the facts, without costs and without disbursements, and vacated, and the petition dismissed. Appellant-conservatee, Ziskind, a 29-year-old bachelor with a B. A. degree in economics, was the beneficiary of a $543,000 trust. In a one-year period preceding the hearing on the petition he depleted the trust fund by approximately $300,000. To demonstrate, Ziskind, because of mental weakness, suffered substantial impairment of his ability to care for his property, his sister, the petitioner-respondent, over Ziskind’s strenuous objections, elicited testimony from his psychiatrist of nine years and produced evidence of Ziskind’s assertedly improvident business transactions. The psychiatric testimony was disputed by the testimony of another psychiatrist and appellant’s business improvidence was not at all convincingly demonstrated. The loans of $150,000 made to Arica Institute, Inc., a nonprofit organization teaching physical exercise, meditation, etc. were evidenced by promissory notes, drawn by his attorney, and one of these notes is secured by a guarantee. Two earlier loans to Arica Institute had been repaid with interest. Loans he advanced to individuals were also evidenced by promissory notes and one of these, for $10,000, is collateralized. His investment in a movie and his other business ventures, though seemingly "risky”, were not shown to be lacking in sound business judgment. Indeed his testimony at the hearing showed this concededly intelligent young man to be knowledgeable about his financial affairs. Section 77.01 of the Mental Hygiene Law limits appointment of a conservator to those instances where there is "clear and convincing proof of the need therefor.” (Matter of Bailey, 46 AD2d 945.) That burden was not met here. Concur—Lupiano, J. P., Capozzoli, Lane and Yesawich, JJ.