Order and judgment (one paper) of the Supreme Court, New York County (Kristin Booth Glen, J.), entered August 7,1995, which directed respondent City of New York to pay the fees of attorneys appointed to represent indigent alleged incapacitated persons (AIPs) in every case in the City of New York where, (i) a petition pursuant to article 81 of the Mental Hygiene Law seeks appointment of a guardian with power either to place an AIP in a nursing home or to make major medical decisions for the AIP and, (ii) the Mental Hygiene Legal Service is not appointed to serve as counsel, affirmed, without costs.
Prior proceedings determined that an indigent AIP, such as respondent herein, is entitled to counsel at public expense in a proceeding under Mental Hygiene Law article 81 seeking the appointment of a guardian empowered to place the AIP in a nursing home and to make major medical decisions without the AIP’s consent, and left open the question of whether the City or the State should bear the expense (215 AD2d 337, modfg 159 Misc 2d 932). Given legislative silence on the matter, Supreme Court appropriately directed that the expense should be borne by the City which, as between the City and the State, is the more appropriate source of public funding for the appointment of counsel in constitutionally mandated cases (Season v Deason, 32 NY2d 93, 95). The court’s declaration of the rights and duties of the parties accurately reflects the nature of the controversy and was not, as the City contends, inappropriate for a proceeding that was not a class action (CPLR 103 [c]).
We note that, pursuant to Mental Hygiene Law § 81.10 (g), whether to dispense with the appointment of a court evaluator is a matter entrusted to the sound discretion of the court. Upon *107the record before us, we cannot say that declining to proceed in the absence of a court evaluator constitutes an improvident exercise of discretion. Concur—Rosenberger, J. P., Rubin and Mazzarelli, JJ.