In this guardianship proceeding, the infant’s grandmother who was appointed guardian of the infant’s property by decree dated July 19, 2004, failed to file annual accounts for over 10 years, and it appears there may have been unauthorized withdrawals of the infant’s funds which emanate from the settlement of causes of action arising from her mother’s death. Based upon the court’s review, the court sua sponte temporarily suspended the mother’s letters of guardianship and appointed a guardian ad litem for the infant (see Matter of Destiny E., NYLJ, Sept. 25, 2012 at 23, col 5 [Sur Ct, Bronx County 2012]). On the return date of an order to show cause filed by the guardian ad litem seeking, inter alia, to revoke the grandmother’s property letters, ordering her to account, and direct the suspended property guardian and JP Morgan Chase Bank, N.A., the respondent depository bank where the infant’s funds were deposited (Chase), jointly and severally, to repay the moneys misappropriated from the infant’s funds, plus interest, costs, fees and disbursements, jurisdiction was obtained over the grandmother whose property letters are suspended and Chase, and they both defaulted.The infant’s mother died on January 24, 2004. The infant, who is now over the age of 14, is her mother’s sole distributee. The letters of property guardianship, as well as the decree dated June 1, 2009 compromising the mother’s wrongful death action, directed deposit of all assets belonging to the infant, including the substantial net distributable settlement proceeds, in numerous guardianship depositories jointly in the names of the suspended property guardian and the Guardian Clerk in nearly equal amounts.In support of the order to show cause, the guardian ad litem reports that the infant initially resided with her father and the suspended property guardian for a period after the mother’s death, the infant’s present whereabouts are unknown, he believes that she is living with her father either in Florida or Puerto Rico, and the suspended property guardian refuses to divulge their address or provide any financial information. His letters to the last address supplied for the infant were returned by the United States Postal Service as “unclaimed and unable to forward.” The guardian ad litem’s investigations disclose that Chase permitted the suspended property guardian to open an account into which the settlement proceeds were deposited without jointly naming the Guardian Clerk of this court, issued an ATM card and checks in the guardian’s personal capacity, which enabled her to make unauthorized withdrawals without the further order of this court. He annexes statements and withdrawal receipts corroborating that the suspended guardian personally withdrew $8,000 from the infant’s funds at Chase on August 11, 2011; $6,000 on September 27, 2011 and $11,000 on August 9, 2012 without court authorization.On this state of the record, including, inter alia, the uncontroverted allegations that the suspended guardian fails to cooperate with the guardian ad litem and account, did not establish a guardianship account at the respondent depository as directed by the court, made three unauthorized withdrawals in her own name totaling $25,000, and that Chase permitted the respondent property guardian to open an account without naming the Guardian Clerk of this court, issued checks and an ATM card to the guardian personally, and improperly imposed fees and expenses on the original guardianship account and other accounts that the guardian opened with guardianship funds, are deemed due proof thereof (see SCPA 509). Accordingly, the letters of guardianship of the infant’s property that issued to the infant’s grandmother are revoked (see SCPA 711 and 719). The guardian ad litem is to file all of the necessary papers to have him appointed as temporary successor guardian of the infant’s property. The court authorizes the temporary successor guardian to take all necessary steps to marshal the infant’s assets and income and locate the infant and her father, including hiring an investigator. The former property guardian is directed to immediately turn over to the temporary successor guardian of the infant’s property all of the funds belonging to the infant as well as all relevant documents, records and papers in her possession and file a final account of her activities as guardian of the infant’s property within 30 days hereof.On this record, the court cannot determine the total losses sustained by the guardianship, including interest, counsel fees, disbursements and costs (see Matter of Rabinowitz, 5 Misc 2d 803, 804 [1967]). Accordingly, this matter shall be set for inquest and assessment of damages against the respondents upon compliance with Uniform Rules for the Surrogate’s Court (22 NYCRR) 207.29 and 207.30. Notwithstanding their default, respondents have the right to appear and participate at the inquest hearing.The Chief Clerk shall mail a copy of this decision, which constitutes the order of the court, to the guardian ad litem, both respondents and the other guardianship depository banks.Proceed accordingly.
