PROCEDURAL AND FACTUAL HISTORY Petitioner is an attorney admitted to the practice of law for over twenty (20) years who commenced this Article 81 Mental Hygiene Law (MHL) guardianship proceeding pro se in December 2017 seeking the appointment of a personal needs and property management guardian for his mother, Cynthia W. The Court appointed an attorney to represent Cynthia W and a court evaluator to investigate the allegations in the petition and to prepare a written report. Prior to the commencement of this proceeding, Cynthia W’s husband filed on April 17, 2014 in New York County Family Court, a family offense proceeding against Petitioner under Article 8 of the Family Court Act (see Court Exhibit 1). Following a hearing in the family offense proceeding, Court Attorney Referee Marva A. Burnett, Esq. found that Petitioner engaged in menacing in the second degree and aggravated harassment in the second degree, and issued an Order of Protection on November 30, 2017, in favor of Cynthia W and her husband, effective until January 26, 2018 (see July 31, 2018 Trial Transcript [7/31/18 TT], P. 18, L. 18-25; Court Exhibit 1). On January 28, 2018, the Order of Protection was extended for an additional two years (see Court Exhibit 1). Cynthia W is an eighty-six-year-old woman with substantial assets who resides with her husband in a thousand square foot co-operative apartment she owns on Sutton Place which is located across the street from Gracie Mansion (August 27, 2019 Trial Transcript [8/27/19 TT], P. 53, L. 2-3; P. 67, L. 5-15). Cynthia W is an accomplished individual, having graduating from Stanford University with a degree in history; attending Columbia University to study Indonesian languages and Ancient Egyptian writing; and enjoying a successful career as a museum curator for seventeen (17) years prior to retiring (Court Exhibit 1). The initial hearing date of January 31, 2018 was adjourned several times following a myriad of email correspondence over the course of some months between Petitioner, this Court’s staff, the court evaluator, and attorney for Cynthia W regarding Petitioner’s kidney transplant, colonoscopy, and renal replacement treatment in which Petitioner requested time to address his health concerns and to recuperate from these procedures.1 The Court heard oral argument on July 31, 2018 regarding counsel to Cynthia W’s motion to dismiss, pursuant to CPLR 3211(a)(1) and 3211(a)(7), and denied both branches of the motion on the grounds that no documentary evidence existed which conclusively refuted Petitioner’s claims and that the detailed allegations in the petition set forth a prima facie case of incapacity, necessitating the need for the appointment of a guardian. Petitioner represented to the Court and to counsel for Cynthia W that he sought to call his mother as a witness and introduce evidence of his mother’s incapacity from 2013 to present; certain improper actions which Cynthia W’s husband allegedly committed against her during this time frame; testimony from the Family Court family offense proceeding, as well as Cynthia W’s medical records. With respect to the admission of Cynthia W’s medical records, Petitioner maintained that Cynthia W waived the doctor-patient privilege when she admitted said records into evidence at the family offense proceeding. The Court advised Petitioner that he was not permitted to call his mother to prove his case considering relevant case law. The Court also advised Petitioner that he would be limited to presenting evidence regarding his mother’s alleged incapacity for two years prior to the commencement of the proceeding up until the present. The Court also advised Petitioner that he would be precluded from introducing medical evidence since the standard in an Article 81 proceeding was functional limitations and because Cynthia W did not waive the doctor-patient privilege. Further, the Court advised Petitioner that it would not consider evidence in the family offense proceeding because the standard and burden of proof regarding both proceedings were different, and that the family offense proceeding had no bearing in this matter. Lastly, the Court advised that it would not permit testimony regarding Cynthia W’s husband in light of the family dysfunction and the extreme animosity Petitioner expressed before the Court toward him, and that it would conduct a bifurcated hearing as to whether Cynthia W was an incapacitated person to reduce tension and to prevent the introduction of inflammatory testimony. After providing its various rulings, the Court expressed readiness to commence the hearing that same day, but adjourned the matter at Petitioner’s request, without objection from Cynthia W’s attorney, to permit Petitioner to attend his kidney dialysis appointment later that day. The Court then adjourned the hearing to September 18, 2018 and instructed Petitioner to submit a witness list to the Court and Cynthia W’s counsel by August 8, 2018. However, the case did not go forward on September 18, 2018 and was adjourned to November 5, 2018. During the last week of October, Petitioner presented to the Court a proposed Order to Show Cause (OSC) requesting to introduce medical evidence; matters from the Family Court proceeding; matters concerning Cynthia W’s husband; and matters concerning Cynthia W’s alleged incapacity five years prior to the commencement of this proceeding. The Court declined to sign the OSC, directing that Petitioner adhere to the Court’s July 31, 2018 directive (November 5, 2018 Trial Transcript [11/5/18 TT], P. 2, L. 15-25). On either November 1 or 2 of 2018, Petitioner appeared in the part for the Court to so-order the July 31, 2018 transcript. Although the Court initially declined such request, the Court reconsidered its decision and so-ordered the transcript but failed to advise the part clerk of its action (id., P. 3, L. 13-20). Thereafter, on November 2, 2018 between 4:15-4:30 p.m., Petitioner appeared in the part and handed the part clerk a summary statement on application for expedited service and/or interim relief, which stated in pertinent part: “[p]rovisions of order appealed from, incapacitated, endangered 85 year old. All evidence of suicide threats, mood disorder, drug abuse, prior to two years ago excluded. Medical evidence excluded. Emergency stay pending CPLR 5704 motion…[s]uicide and drug abuse, mood disorder, cognitive disorder of 85 year old excluded from evidence hearing on November 5, 2018. All evidence excluded of grave danger” (id., P. 3, L. 20-25; P. 4, L. 1-7). The Court noted that Petitioner’s application before the Appellate Division was scheduled for an expedited decision, with a return date of November 19, 2018 (id., P. 4, L. 10-12). However, at some point, Petitioner slipped a handwritten note under the door of the robing room and the Court advised the part clerk that it would not review the ex-parte material. The part clerk subsequently provided it to counsel for Cynthia W and to the court evaluator. Petitioner called the part clerk on Monday, November 5, 2018 (the date of the scheduled hearing) around 8:50 a.m. and advised that he was admitted to New York Presbyterian Hospital over the weekend for suspected tuberculosis and that this matter was pending before the Appellate Division and would be adjourned (id., P. 5, L. 11-25; P. 6, L. 1-2). The Court advised the part clerk to inform Petitioner that neither the Appellate Division nor this Court stayed this matter (id., P. 5, L. 13-19). Petitioner further advised the part clerk that he forwarded to the Court and all parties that same morning a letter from the hospital confirming his condition, and the part clerk advised that it did not receive such letter (id., P. 6, L. 1-9). The court evaluator and the attorney for Cynthia W appeared for the scheduled hearing and Petitioner called the part at 10:35 a.m. and was placed on speaker phone, advising that he was in bed and directed not to be in contact with others due to his medical condition (id., P. 6, L. 10-13). The Court admonished petitioner for submitting an ex-parte communication and reviewed the letter from Petitioner’s doctor on Cynthia W’s attorney’s electronic tablet, indicating that Petitioner may have tuberculosis (id., P. 5, L. 1-6; P. 8, L. 12-25; P. 9, L. 1-7). The Court then adjourned the matter for a hearing on December 10, 2018.2 Prior to the Court’s receipt of testimony, counsel for Cynthia W advised the Court that although his client was able to meaningfully participate in the proceeding, he did not intend to call her as a witness and that Cynthia W did not wish to appear and requested that counsel represent her. The Court then addressed Petitioner’s Witness List (dated December 3, 2018) of ten (10) persons, which included Cynthia W’s husband and her college roommate, United States Senator Dianne Feinstein. The Court ruled that it would only hear from Petitioner, an individual Petitioner identified as a proposed guardian, Petitioner’s sister, and Rafael Toledo, (“Mr. Toledo”), the doorman at Cynthia W’s building, because Petitioner was unable to provide an offer of proof with respect to the extent of the relationship and any recent contact between Cynthia W and the remainder of the proposed witnesses. Petitioner commenced his direct testimony that day, which the Court suspended and held in abeyance to receive testimony from Petitioner’s subpoenaed witness, Mr. Toledo to accommodate his work and family obligations. Petitioner’s Testimony3 Petitioner testified that he spoke with Cynthia W in November 2017, January, February and April of 2018, as well as in January 2019 (December 10, 2018 Transcript [12/10/18 TT], P. 45, L. 3-6; L. 9-10; 8/27/19 TT, P. 42, L. 4-10; P. 70, L. 20-24). Petitioner also testified that he noticed that the personal greeting to Cynthia W’s answering machine was removed when he periodically called her in November 2017, and that she subsequently stopped answering the phone (12/10/18 TT, P. 49, L. 21-26; P. 50, L. 14-22). According to Petitioner, Cynthia W sounded tired and feeble, as well as confused when he spoke with her in November 2017 and January 2018 (id., P. 50, L. 23-26; P. 51, L. 2-23). Petitioner also testified that he had not seen Cynthia W since 2015 due to the Order of Protection against him (id., P. 54, L. 17-16; P. 55, L. 2-4). However, Petitioner maintained that Cynthia W appeared disheveled during 2015 when he repeatedly saw her in Family Court (08/27/19 TT, P. 51, L. 14-25; P. 57, L. 3-4). Petitioner testified that Cynthia W was unable to address her personal hygiene or manage the financial aspects and upkeep for the apartment (id., P. 52, L. 5-9; P. 68, L. 1-8). However, he indicated that he was unable to provide testimony regarding Cynthia W’s inability to manage her personal affairs during the two years prior to commencing this proceeding (id., P. 52, L. 5-25; P. 53, L. 1). Petitioner also testified that he had no personal knowledge as to whether any of Cynthia W’s bills were past due or whether she possessed any credit cards (id., P. 65, L. 16-19). Petitioner further testified that he drove past Cynthia W’s East Hampton home during 2018 and observed that the children of Cynthia W’s husband resided there, and that Cynthia W’s absence caused him alarm because it was her “sanctuary,” to which she would regularly retreat (id., P. 44, L. 22-25; P. 45, L. 1-15). Most of Petitioner’s testimony addressed Cynthia W’s husband, where he repeatedly referenced the fact that the husband was either fifteen (15) or sixteen (16) years her junior who fathered five children from three different women. Petitioner also characterized the husband as an exploiter who wore fancy suits; exerted total control over every aspect of Cynthia W’s life; and constituted a danger to her safety and well-being. Mr. Toledo’s Testimony Mr. Toledo testified that he was employed as a doorman for approximately twenty (20) years at the building where Cynthia W and her husband resided and knew Cynthia W for approximately fourteen (14) years (12/10/18 TT, P. 66, L. 16-22: P. 67, L. 2-3). Mr. Toledo indicated that his interactions with Cynthia W during the past two years were limited to opening the entrance door upon her entry into and exit from the building, and that he never entered her apartment (id., P. 67, L. 5-16). Mr. Toledo testified that from 2015 to 2018, he observed that Cynthia W always presented with appropriate attire and often used a stroller due to her knee problems (id., P. 67, L. 21-26; P. 68, L. 2-26; P. 69, L. 2-19). Mr. Toledo also testified that his interactions with Cynthia W’s husband between 2015 and 2018 were limited to entering or exiting the building (id., P. 71, L. 3-19). Further, Mr. Toledo testified that he never witnessed any type of interactions between Cynthia W and her husband which caused him concern (id., P. 78, L. 15-19). Court Evaluator’s Testimony4 The court evaluator testified that he served as a court evaluator for approximately ten (10) years and interviewed 300,000-400,000 people, observing and analyzing their behavior in his former capacity as a police officer (September 30, 2019 Trial Transcript [09/30/19 TT], P. 7, L. 20-26; P. 29, L. 12-13). The court evaluator also testified that he interviewed Cynthia W at her residence in January 2018 and observed that she was well-dressed, wearing pearls, and resided in a “well-manicured,” “well-designed,” and “beautiful” apartment, which was decorated with pictures of paintings from her travels and from her prior career as a museum curator (08/27/19 TT, P. 115, L. 5-14). The court evaluator indicated that he asked Cynthia W general questions about her daily life, her relationships with her family and husband, and specifically about her relationship with Petitioner (id., P. 116, L. 3 – P. 118, L. 1). Additionally, the court evaluator testified that Cynthia W was aware of the present time, date and place; as well as the activities and politics of the day, and was well versed in history (09/30/19 TT, P. 49, L. 13-16). When the court evaluator explained the purpose of his interview to Cynthia W, she responded that she had no need for a guardian; enjoyed life with her husband; and executed a will, a healthcare proxy, and power of attorney, naming her husband as agent, which the court evaluator reviewed (08/27/19 TT, P. 116, L. 6-25). Regarding Petitioner’s allegations of drug and substance abuse, the court evaluator testified that there was no indication of drug abuse during the interview: Cynthia W did not slur her speech, she was actively engaged in conversation during the interview, clearly expressed her thoughts and feelings about her life, and was aware of her surroundings (09/30/19 TT, P. 28, L. 8-19). Lastly, the court evaluator maintained that the petition should be dismissed because Cynthia W was able to independently handle and understand the consequences of her actions. DISCUSSION Article 81 of the MHL was enacted for the purpose of providing the least restrictive means of intervention for persons with incapacities who require assistance with their personal or property management needs while simultaneously permitting such persons, if capable, to exercise their independence and self-determination (see MHL §81.01). A court may exercise its discretion to appoint a guardian after determining that the appointment is necessary to provide for the personal and/or property or financial affairs of that person, and that the person either agrees to the appointment, or is incapacitated as defined in MHL §81.02(b) (see MHL §81.02[a]). In order to determine whether the appointment of a guardian is necessary, a court must consider the report of the court evaluator in addition to the sufficiency of reliable available resources which provides for personal needs or property management without the appointment of a guardian, such as powers of attorneys and health care proxies (see MHL §§81.02[a][2], 81.03 [e]). With respect to a court’s determination as to whether a person is incapacitated, the Petitioner has the burden of proof in establishing by clear and convincing evidence that the person is likely to suffer harm because he or she is unable to provide for their personal needs and/or property management and cannot adequately understand and appreciate the nature and consequences of such inability (see MHL §§81.02[b], 81.12[a]). Such determination must be based upon a court’s primary consideration of the person’s functional level and functional limitations, including an assessment of that person’s ability to manage the activities of daily living and property and financial management (see MHL §81.02[c]). A guardian should only be appointed as a last resort, and the need for such appointment is obviated where available resources or other alternatives will adequately protect the person (see Matter of Maher, 207 AD2d 133, 140 [2d Dept 1994]; Matter of Albert S., 286 AD2d 684, 684 [2d Dept 2001]. After considering the evidence presented, the Court concludes that Petitioner failed to establish by clear and convincing evidence that Cynthia W is an incapacitated person who is likely to suffer harm because she is unable to provide for her personal needs and/or property management and cannot adequately understand and appreciate the nature and consequences of such inability. The evidence presented indicated that Cynthia W resides in a well-manicured apartment and was able to provide the court evaluator with information regarding her daily affairs and family relations, and that she executed a will, as well as a healthcare proxy and power of attorney, naming her husband as agent. The court evaluator’s observations, which included the fact that Cynthia W was well dressed at the time of his interview, indicated the absence of any appearance of drug abuse as Petitioner alleged, and that Cynthia W was able to independently handle and understand the consequences of her actions. Despite Petitioner’s protestations, there is simply no evidence that Cynthia W does not possess the wherewithal to manage her personal affairs and finances. Petitioner has not seen Cynthia W since 2015 and although he maintained that she appeared disheveled when he repeatedly observed her in Family Court, the Court did not find such testimony credible considering the court evaluator’s testimony regarding Cynthia W’s appearance and the condition of her apartment. The Court also found incredible Petitioner’s testimony regarding Cynthia W’s inability to manage her personal or financial affairs, since he had no personal knowledge regarding such matters for two years prior to the commencement of this proceeding. Further, the Court did not find Petitioner credible with respect to Cynthia W’s alleged incapacity based upon this Court’s observations of his facial expressions, as well as his evasive and belligerent manner. Most of Petitioner’s testimony addressed his disdain of Cynthia W’s husband and the husband’s supposed total control over Cynthia W. In assessing Petitioner’s testimony, Petitioner demonstrated extreme hostility and vitriol toward Cynthia W’s husband and often appeared in an enraged state, requiring the Court to repeatedly admonish Petitioner to lower the volume of his voice and not to bang his fists on the table. It would be an improvident exercise of discretion to revoke Cynthia W’s advance directives, which adequately protect her and constitute the least restrictive form of intervention, because there is no evidence that the husband breached his fiduciary duty or that the husband was unable or unwilling to serve in this capacity (see Matter of Isadora R., 5 AD3d 494 [2d Dept 2004]; Matter of Kufeld, 23 Misc3d 1131[A] [Sup Ct, Bronx County 2009]; Matter of May Far C., 61 AD3d 680 [2d Dept 2009]; Matter of N.W., 24 Misc 3d 1220(A) [Sup Ct, Bronx County 2009]; Matter of G.S., 17 Misc 3d 303, 307 [Sup Ct, Bronx County 2007]; Matter of O’Hear (Rodriguez), 219 AD2d 720, 722 [2d Dept 1995]; cf., Matter of Karen H.M. (Miriam)., 45 Misc 3d 858, 868 [Sup Ct, Bronx County 2014]). Therefore, the Court denies the petition and dismisses the proceeding, with prejudice. When a petition is dismissed for lack of merit, a court has discretion to direct the Petitioner to pay the fees of the court-appointed attorney and court evaluator (Matter of Lyles, 250 AD2d 488 [1st Dept 1998]; Matter of Kurt T., 64 AD3d 819 [3d Dept 2009]; Matter of Bonnie H. (Bonnie O.), 53 Misc 3d 1218(A) [Sup Ct, Dutchess County 2016]). “The purpose of…permitting shifting of fees to the [P]etitioner is to caution those who would bring a frivolous petition, or one motivated by avarice, that they might very well have to bear the financial burden of the proceeding” (Matter of Kurt T, supra at 823). The factors in determining the apportionment of fees when a petition is dismissed is “whether there is evidence that the [P]etitioner was motivated by avarice or possible financial gain, whether the [P]etitioner has acted in good faith in commencing the petition, the sufficiency of the petition on its face, the relative assets or indigence of the [P]etitioner and [Cynthia W], and any special circumstances that may exist, such as benefits to [Cynthia W] that may have resulted from the filing of the petition” (id.). The Order of Protection against Petitioner, his lack of credibility, failure to present any evidence of incapacity, as well as his expressed negative fixation upon Cynthia W’s husband and his children, suggest that this proceeding was not commenced in good faith to advance Cynthia W’s best interests. Although Petitioner had an Order of Protection against him, which remains in effect, he testified that he contacted Cynthia W during such timeframe. These actions may subject Petitioner to further proceedings in Family Court regarding his conduct. Further, Petitioner’s adjournment requests were questionable since he never produced detailed medical documentation as requested regarding his medical treatments and his conduct was extremely lacking in civility, as an officer of the court. Therefore, the Court directs that Petitioner bear all costs of this proceeding (see MHL§§81.09[f], 81.10[f]; Matter of Kurt T., supra; Matter of Bonnie H. (Bonnie O.), supra; Matter of Brice, 42 Misc3d 1231[A][Sup Ct, Kings County 2014]). The Court further directs the court evaluator and attorney for Cynthia W to submit an affirmation of services, with notice to Petitioner, within two weeks from the date of this decision. The Court will fix reasonable compensation to the court evaluator and attorney for Cynthia W in accordance with the factors set forth in Matter of Freeman, 34 NY 2d 1, 9 (1974). Accordingly, it is ORDERED that this petition is denied in its entirety; and it is further ORDERED AND ADJUDGED that this proceeding is dismissed, with prejudice. Dated: November 22, 2019 New York, New York
