The following papers have been read on this motion:Notice of Motion (Personal Needs Guardian 1Opposition (Second Successor Property Management Guardian) 2Opposition (Court Examiner) 3 Marian Kornicki, the Personal Needs Guardian and daughter of the Incapacitated Person, Bertha Kornicki, now deceased, moves this Court to enforce a settlement stipulation dated April 18, 2016, in this guardianship matter; specifically, she requests that the Second Successor Property Management Guardian turn over to her a deed to a property owned by the Incapacitated Person known as One Pony Circle, Roslyn Heights, New York, 11577. The Second Successor Property Management Guardian has opposed the application and the Court Examiner has also offered his opinion to the Court that the Second Successor Property Management Guardian currently lacks the authority to make such a transfer at this time. After review of the papers submitted, the motion is hereby denied in its entirety.In a proceeding within this guardianship matter brought pursuant to Mental Hygiene Law §81.43, a hearing was scheduled to take place beginning on April 18, 2016; instead, the matter was resolved when the then Successor Property Management Guardian, the Personal Needs Guardian, and Interested Party Terri Kornicki, the other daughter of the Incapacitated Person, entered into a stipulation resolving the issues contested as part of that application before the Court. Essentially, the stipulation divided most, if not all, of the property of the Incapacitated Person between her two daughters. The subject real property at that time was in the name of Interested Party Terri Kornicki individually and/or as Trustee of the Kornicki Qualified Personal Residence Trust and the stipulation called for the property to be transferred from Terri Kornicki, to the Successor Property Management Guardian, then to Marian Kornicki, with a life estate for the Incapacitated Person. Within days of this stipulation being executed, the then property guardian was permitted to resign, and the current Second Successor Property Management Guardian was appointed.From the time the stipulation was executed, both the Personal Needs Guardian and the Interested Party, both daughters of the Incapacitated Person, made carrying out the terms of the agreement protracted at best and arduous at worst. As a result, the deed from Interested Party Terri Kornicki did not come into the possession of the Second Successor Property Management Guardian until late February 2018. Given that other items of the stipulation had still not been fulfilled due to delays on the part of the Personal Needs Guardian and the funds available in the guardianship account having dwindled below thirty-thousand dollars, with several fees and bills still outstanding to be paid, the Second Successor Property Management Guardian contacted this Court to schedule a conference to discuss the situation. Thus, in response to the letter dated March 2, 2018, this Court scheduled a conference for March 23, 2018 for all parties to appear.On March 16, 2018, this Court received an email from the then attorney for the Personal Needs Guardian, informing all involved in this matter that the Personal Needs Guardian had terminated his representation of her. As a result, the Personal Needs Guardian requested an adjournment of at least thirty (30) days to obtain new counsel, which the Court granted. The conference was put over to April 27, 2018. About one week prior to the conference date, the Personal Needs Guardian contacted the Court and requested another adjournment of this matter, alleging that the regular aide scheduled to be with the Incapacitated Person during the conference was unavailable, thus necessitating her to be home with a fill-in aide and her mother, who is unable to communicate in any way. Over objection, the Court granted one final adjournment of the scheduled conference, putting the matter over to May 9, 2018. Unfortunately, the Incapacitated Person passed away on May 8, 2018; thus, the conference was cancelled altogether.*Pursuant to CPLR §2104, an agreement between the parties or their attorneys relating to any matter in an action must be in a writing subscribed by him or his attorney or reduced to a form of an order and entered. Stipulations of settlement are favored by the Courts and are not lightly cast aside. Desantis v. Ariens Co., 17 AD3d 311, 792 NYS2d 599 (2nd Dept., 2005).A guardian’s authority and duties are chiefly directed toward the care and welfare of a living incapacitated person. Matter of Glener, 202 AD2d 503, 609 NYS2d 26 (2nd Dept., 1994). Upon the death of the incapacitated person, the guardian is simply authorized to wind up the estate of the incapacitated person and provide for the burial of him or her. Id at 503, 27. The death of an incapacitated person causes the authority of the guardian to end and the court shall discharge the guardian or modify the powers of the guardian where appropriate only. Id at 504, 27; In re Vita V., 100 AD3d 913, 954 NYS2d 582 (2nd Dept., 2012).In the instant case, the death of the incapacitated person has constrained both the Second Successor Property Management Guardian and this Court from further carrying out the terms of the stipulation. While the transfer should have taken place long before the death of the Incapacitated Person, the fact that it did not happen timely is of no consequence to the current analysis. What is relevant are the powers still available to the Second Successor Property Management Guardian with respect to the winding up of this guardianship; that is, she may pay funeral and/or burial expenses outstanding, pursuant to Mental Hygiene Law §81.21(a)(14) and §81.36(e); retain an accountant, pursuant to Mental Hygiene Law §81.21(a)(18); pay bills, pursuant to Mental Hygiene Law §81.21(a)(19); defend or maintain any judicial action or proceeding until an executor or administrator is appointed, Mental Hygiene Law §81.21(a)(20). Outside of these powers, and the responsibilities now conferred upon her pursuant to Mental Hygiene Law §81.44, the Second Successor Property Management Guardian no longer has the authority to act as stipulated to prior to her appointment and currently being requested to here. Indeed, transferring real property cannot be considered as an act necessary to wind up a guardianship matter and such action should not be taken by the Second Successor Property Management Guardian. Therefore, the application to enforce the settlement stipulation is properly denied herein.Even assuming, arguendo, that the request before the Court were one to modify the powers of the Second Successor Property Management Guardian to allow her to transfer the subject property to the Personal Needs Guardian pursuant to the settlement stipulation, pursuant to Mental Hygiene Law §81.36, this Court would still deny such a request, in particular such a motion having been presented by the Personal Needs Guardian and opposed such as here. Since the execution of the aforementioned settlement stipulation on April 18, 2016, the Personal Needs Guardian has done her best to frustrate the execution by the Second Successor Property Management Guardian from her efforts to carry out the terms of this-stipulation that would not benefit herself directly. For example, pursuant to the settlement stipulation, there existed just over two-hundred thousand dollars in a bank account in Israel that the Second Successor Property Management Guardian was supposed to marshal into the guardianship account and disburse seventy-five percent (75 percent ) of to Interested Party Terri Kornicki; this task was to be performed with the cooperation and assistance of the Personal Needs Guardian. To date, such bank account has never been marshaled, due largely to the lack of cooperation by the Personal Needs Guardian. Moreover, at a conference held in this matter on December 12, 2017, this Court learned that the Personal Needs Guardian had still not permitted the Second Successor Property Management Guardian to assist in inventorying the jewelry of the Incapacitated Person, nor has she independently provided such a list or an affidavit as to the whereabouts of the jewelry.In addition to the difficulty that the Personal Needs Guardian has caused the Second Successor Property Management Guardian in fulfilling her tasks under the settlement stipulation, she has also failed to cooperate with the Second Successor Property Management Guardian in fulfilling her duties under this guardianship. This Court has already sanctioned the Personal Needs Guardian for her conduct surrounding the death of the Incapacitated Person and it is worth noting that there has been no indication that such sanctions have been paid to date. Furthermore, the Personal Needs Guardian has completely ignored this Court’s order dated July 30, 2018, directing her to provide the Second Successor Property Management Guardian with a death certificate for the Incapacitated Person, a readily available document for a daughter of a decedent, so that she may comply with Mental Hygiene Law 81.44(c) and begin the process of winding up this guardianship; instead, the Second Successor Property Management Guardian has had to go through other channels to obtain that document and comply with the statute.Simply put, the Personal Needs Guardian has been the cause of delay after delay in this guardianship matter since the date of the settlement stipulation whenever the situation did not directly benefit herself. She has created more work and necessitated more judicial intervention by her defiant behavior, resulting in the other court-appointees incurring more time and accruing more fees than this guardianship supported. The repeated defiance by the Personal Needs Guardian of this Court’s directives and her own responsibilities under the settlement stipulation cannot now be rewarded by modifying the powers of the Second Successor Property Management Guardian to allow the property of the Incapacitated Person be transferred posthumously. Thus, any request to modify the powers of the Second Successor Property Management Guardian must also be denied.The movant shall file and serve a copy of the within order with notice of entry upon all parties served with the moving papers within twenty (20) days from the date of this order.This hereby constitutes the decision and order of this Court.DATED: October 25, 2018
