Surrogate MellaESTATE OF JOYCE CHENEY, Deceased (07/1573/C) — The law firm of McCarthy Fingar LLP was counsel to Diane Wells in two actions transferred to this court. Upon a non-jury trial, the court ruled in favor of Wells, determining that certain assets were Wells’s property, namely, the proceeds of insurance policies on the life of her mother, decedent Joyce Cheney, and the shares appurtenant to a cooperative apartment on Central Park West. In the present proceeding, the law firm seeks to fix and determine the fees due it under a retainer for its work in those actions and to determine a charging lien pursuant to Judiciary Law section 475 on Wells’s recoveries in those actions.Wells, although served with process, has not appeared. She indicated in informal correspondence with the court that she required funds to retain an attorney, and this court responded by providing her additional time within which to provide the name of the attorney she proposed to retain and the amounts necessary. Any retainer presumably could be paid from the McCarthy firm’s escrow account, where certain of the proceeds of the actions have been placed, subject to further court order, pursuant to the post-trial decree. However, the deadline for her to provide such information passed without her specifying an attorney whom she wished to retain.The court then appointed a guardian ad litem for her, and the guardian ad litem has filed initial and supplemental reports. These reports buttress certain allegations in the petition here, i.e., that Wells may lack the capacity to manage her affairs, including this litigation and the proceeds from the trial. It is clear that steps need to be taken to protect Wells’s interests, which she appears to be neglecting. In this regard, the court notes that certain of the insurance proceeds that Wells won at trial have not been paid because there was a dispute about the amount of interest on such proceeds owed by the insurance company pending the resolution of the actions. Although the McCarthy firm and counsel to the insurer reached a settlement of this issue, Wells apparently refused to agree to it, and no explanation has been proffered for such rejection.1In addition, the Central Park West cooperative apartment, her ownership of which was determined at trial, continues to accrue charges and maintenance and may eventually need to be sold to pay such charges. Moreover, there is an estate tax lien on the cooperative shares, against which there may be defenses to enforcement. These issues have persisted for years. In view of Wells’s unwillingness to participate in this proceeding, even after having been successful at trial, and her refusal to receive or act to protect those proceeds, and in further view of the guardian ad litem’s concerns about his ward’s living situation and ability to support herself, the need for guardianship proceedings is apparent (Matter of Bernice B., 176 Misc 2d 550 [Sur Ct, NY County 1998]).The guardian ad litem’s request for authority to commence a guardianship proceeding in New York2 is granted and he is directed and authorized to petition pursuant to Mental Hygiene Law, Articles 81 and 83, for the appointment of a guardian to protect Wells’s interests in this proceeding — including petitioning for the appointment of a temporary guardian, if advisable and in his discretion — and to take any necessary actions to protect the assets that Wells acquired after trial before this court in the transferred actions. The McCarthy firm is authorized, as escrow agent, to release and pay up to $5,000 immediately to the guardian ad litem for the costs associated with the commencement of the guardianship proceeding.This decision constitutes the order of the court.Clerk to notify.Dated: July 25, 2018
