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Supreme Court, Broome County, November 4, 2004
APPEARANCES OF COUNSEL
Hinman, Howard & Kattell, LLP, Binghamton (Alyssa M. Barreiro of counsel), for petitioner. Mental Hygiene Legal Service, Binghamton (April Smith of counsel), for respondent.
{**6 Misc 3d at 448} OPINION OF THE COURT
Eugene E. Peckham, J.
This is a proceeding under article 81 of the Mental Hygiene Law for the appointment of a guardian of the person and property of A.G., an alleged incapacitated person (AIP). A.G. did not [*2]answer the petition, take any steps to place his condition affirmatively in issue, call any witnesses or waive any of his civil rights or privileges. The petitioner is United Health Services Hospitals, Inc. (UHS), and the proposed guardian is the Broome County Commissioner of Social Services. Mental Hygiene Legal Service was appointed by the court as counsel for the AIP.
At the trial petitioner called a discharge planner at UHS who testified that since March 2003,
A.G. had been admitted to the hospital over 25 times and had signed himself out against medical advice 16 times. Petitioner also called a registered nurse and case manager who confirmed some of the discharge planner's testimony, but was prevented from testifying further due to objections on the grounds of the nurse-patient privilege. (CPLR 4504.)
Petitioner next called the AIP as a witness. The AIP's attorney objected on two grounds: (1) the Fifth Amendment right not to testify when a liberty interest is at stake, and (2) that permitting petitioner to call the AIP would shift the burden of proof that is imposed upon petitioner by Mental Hygiene Law

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