The following electronically submitted documents numbered EF56 through EF68 were considered on this motion by the Guardian for an order granting certain injunctive relief pursuant to Mental Hygiene Law §81.23: Papers Numbered Order to Show Cause, Affirmation, Affirm. Of Service, Exhibits EF56-EF58 Affirmations in Opposition EF59-EF60 Affirmation in Support EF64 COVID-19 Hardship Declaration, Affirmation in Opposition EF66-EF67 Reply Affirmation in Support EF68 DECISION AND ORDER DIRECTING OCCUPANTS TO VACATE REAL PROPERTY OWNED BY THE PERSON IN NEED OF A GUARDIAN In this Mental Hygiene Law (“MHL”) Article 81 proceeding, Thomas Pietrantonio, Esq. (hereinafter the “guardian”) moves as personal needs and property management guardian of Chin May Yiu Lee a/k/a May Lee (hereinafter the “person in need of a guardian” or “PING”) for an order pursuant to MHL §81.23, directing Lily Lee, one of the PING’s daughters, and Robert Dobkin, her paramour (collectively referred to as the “occupants”) to vacate a condominium apartment located at 110 W. 90th Street, Apt 1G, New York, NY 10024 (hereinafter the “90th Street apartment” or the “apartment”), so that the apartment can be listed, sold, and the proceeds used to fund the care and maintenance of the PING. The PING, through her counsel, joined the application orally but did not submit an affirmation in support. The PING’s other two children, Chuck Lee and Lillian Lee, filed an affirmation in support of the motion, while the occupants oppose the motion. The issue of the occupants’ residence in the apartment has been contested since August 2020, when the guardian moved for leave to list the apartment for sale (see Documents EF5-EF45). The apartment is primarily occupied by Robert Dobkin, while Lily Lee resides in a separate single-family home with the PING (see Document EF59). Both the apartment and the single-family home are held in a revocable trust, of which the PING is the lifetime beneficiary, and of which the PING and her son Chuck Lee are co-trustees (see Document EF55, Pages 38-63). The maintenance fees for the apartment are paid by Mr. Dobkin, while the guardian pays the property taxes on the apartment from the PING’s estate. The guardian’s initial application for leave to sell the apartment (Motion Sequence #6) was filed on or about August 20, 2020, on grounds that the funds available for the care and maintenance of the PING from a previously approved reverse mortgage on the single family residence where she resides had been depleted (see Document EF6). Lily Lee and Robert Dobkin opposed that motion, while Chuck Lee and Lillian Lee joined in the guardian’s application.1 In opposition to that motion, Lily Lee and Robert Dobkin argued that Lily was the owner of the apartment, or in the alternative that the PING’s late husband had intended the apartment to be Lily’s benefit and use, despite the apartment having been transferred to the trust by deed dated May 10, 2006. By Order dated November 13, 2020, a prior Justice of this Court rejected that argument and granted the guardian’s motion (see Document EF45). In that Order, inter alia, the guardian was authorized to sell the apartment, Lily Lee was directed to provide the guardian and geriatric care manager copies of the keys to the apartment, and the occupants were directed to refrain from interfering with and to cooperate with the guardian and/or his agents or employees. The matter was set down for a compliance conference, which was held on January 12, 2021. At the January 12, 2021 conference, the guardian reported that the PING’s estate was dangerously close to depletion, and that the sale of the apartment was necessary to pay for the PING’s continued care. Counsel for the occupants acknowledged that although his clients paid the monthly maintenance on the apartment, they did not pay fair market rent or make any other financial contributions to the PING’s estate in consideration for the continued benefit they enjoyed by living in the apartment. The guardian further advised the Court that Mr. Dobkin had not yet granted the court-appointed real estate broker access to the apartment, as he had been directed to do in the November 13, 2020 Order. At the conclusion of the January 12, 2021 conference, the Court directed counsel for the occupants to arrange a date for the real estate broker to be granted access to the apartment, and the matter was adjourned to February 2, 2021 for another compliance conference. At the February 2, 2021 conference, the guardian informed the Court that Mr. Dobkin had not yet granted the real estate broker access to the apartment, again despite the November 13, 2020 Order, and the Court’s verbal direction at the January 12, 2021 conference. Counsel for the occupants argued that Mr. Dobkin could not permit entry into the apartment by anyone due to the ongoing COVID-19 pandemic, but refused to leave the apartment, even temporarily, to permit access without close contact. Thus, by Order dated February 3, 2021, the Court again directed the occupants to grant the Guardian and real estate broker access on a date and time certain, and thereafter to grant such further access as needed to facilitate the listing and sale of the apartment on 48 hours’ notice from the guardian. The matter was set down for further compliance conference on February 12, 2021. Mr. Dobkin finally granted access to the guardian and court-appointed real estate broker, at which point it became apparent to the guardian and real estate broker that the apartment was not in marketable condition. Specifically, the guardian observed that the apartment was filled with personalty, boxes, and other clutter, and that certain rooms were completely inaccessible. The guardian advised the Court that the apartment would require a heavy-duty cleaning before being listed for sale, to which Mr. Dobkin would not consent. To ensure continuity of care while the issue of the apartment was resolved, the Court directed the guardian to make an application for community Medicaid benefits for the PING, treating the apartment as an ‘unavailable asset’ due to Mr. Dobkin’s refusal to vacate or clean the apartment, and thereafter to seek any further relief relating to the apartment via Order to Show Cause. On April 19, 2021, the Court issued an Order to Show Cause, brought on by the affirmation of the guardian, directing the occupants to show cause why they should not be ordered to vacate the apartment to permit its cleaning and sale. The motion was conferenced on May 4, 2021, at which time the guardian advised that Mr. Dobkin had still not vacated the apartment or permitted meaningful access to the guardian and/or the real estate broker, and the guardian again warned of the PING’s dire financial situation. At the May 4, 2021 conference, the Court attempted to broker a settlement of the matter, suggesting that the occupants determine what, if any, amounts they could contribute to the PING’s estate on a monthly basis to compensate the PING for the continued use and occupancy of the apartment, and the matter was adjourned to May 25, 2021. On that date, counsel for the occupants advised the Court that his clients could not, or would not, make any contribution to the PING’s estate in consideration for their continued occupancy of the apartment. Pursuant to Mental Hygiene Law §81.23 (b) (1), “[t]he court may, at any time prior to or after the appointment of a guardian…enjoin any person, other than the incapacitated person…from…doing or suffering to be done any act or omission endangering the health, safety or welfare of the incapacitated person”. Such an application may be made by Order to Show Cause or sua sponte by the Court and must be made on notice to all parties entitled to receive notice of the proceeding. This injunction may take the form of a temporary restraining order where, “in the absence of such restraining order, the property of the incapacitated person or person alleged to be incapacitated would be dissipated to that person’s detriment or that the health, safety or welfare of the incapacitated person or the person alleged to be incapacitated would be endangered” (MHL §81.23 [b] [2]). In this case, the guardian has shown via affirmation and documentary evidence that by occupying the 90th Street apartment while contributing only for the maintenance, and by continually frustrating the guardian’s efforts to sell the apartment, the occupants have materially contributed to the near total depletion of the PING’s estate. The guardian has further shown that the PING’s limited Social Security income is insufficient to meet her monthly expenses, such as property taxes on her primary residence in the community, property taxes on the apartment, homeowner’s insurance, and utilities. Indeed, the PING’s estate is so critically depleted as to require the PING’s other children to contribute funds to purchase her food. Accordingly, the Court finds based upon the papers submitted that the failure of Lily Lee and Robert Dobkin to vacate the 90th street apartment in compliance with the repeated orders of this Court have caused the property of the PING to be dissipated to her detriment, and that as a result of that dissipation, the health, safety and welfare of the PING have been endangered. The occupants offer several objections to the guardian’s motion. First, the occupants argue that since the PING’s community Medicaid application has been approved, her expenses have substantially decreased, and that her remaining expenditures should be cut further, such that she can live exclusively on her Social Security income and not need to sell the apartment to fund her care. However, the occupants offer no documentary evidence of their claim that the PING’s expenses are now below her income to rebut the guardian’s specific, detailed factual showing. Moreover, the occupants’ attempt to substitute their seemingly naked self-interest for the guardian’s discretion is entirely improper, and runs afoul of the guardian’s duty to “use the property and financial resources and income available therefrom to maintain and support the incapacitated person” (MHL §81.20 [a] [6] [iv]). Although the statute imposes on the guardian a concomitant duty “to maintain and support those persons dependent upon the incapacitated person”, neither of the occupants has made a showing that they are dependent upon the PING, and even assuming they had made such a showing, the guardian’s duty towards his ward’s dependents must remain secondary to the guardian’s obligation to his ward. Next, the occupants seek to avail themselves of the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (as extended through August 31, 2021) (hereinafter the “COVID-19 Act of 2020″), by each filing a pro forma COVID-19 hardship declarations. As a preliminary matter, the provisions of the COVID-19 Act of 2020 are limited to summary proceedings to recover possession of real property under Article 7 of the Real Property Actions and Proceedings Law, or other judicial or administrative proceedings to recover possession of real property (see L 2020, ch 381). In the instant motion, the relief requested by the Guardian under Mental Hygiene Law §81.23, though relating to real property, is ancillary to the underlying Article 81 proceeding, the purpose of which is to provide for the “personal or property management needs of [the PING] in a manner tailored to the individual needs of that person” (MHL §81.01). Accordingly, the Court finds that since the purpose of this Article 81 proceeding is not to recover possession of real property, the provisions of the COVID-19 Act of 2020 are inapplicable to the provisional remedies sought by the guardian and available to the Court under MHL §81.23. Even assuming arguendo that the COVID-19 Act of 2020 was applicable to the provisions of the Mental Hygiene Law, the occupants would not be entitled to invoke its protections. The COVID-19 Act of 2020 specifically exempts from its protections tenants or occupants that are “persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others” (see L 2020, ch 381, Part A, §9). In this case, the same conduct on the part of the occupants that warrants relief under MHL §81.23-to wit, their steadfast and insouciant insistence on enjoying the benefits of the PING’s property over the objection of her duly appointed guardian and to her critical financial detriment-places them squarely outside the protection of the COVID-19 Act of 2020. Finally, to the extent the COVID-19 Hardship Declarations are submitted for persuasive value, the Court finds them wholly unpersuasive. Neither declaration makes even the slightest attempt to go past the pro forma language of the COVID-19 Act of 2020 or provides any factual specificity as to the hardships purportedly experienced by the occupants. Both declarations allege financial hardship due to lack of income, but neither specifies what income either occupant had prior to the pandemic or lost because of it. Similarly, both declarations allege in conclusory fashion that the occupants would be at increased risk by moving to new housing due to underlying medical conditions, without any further specificity. Considered in context with the occupants’ behavior throughout this litigation, the Court in its discretion as factfinder assigns no evidentiary weight to these four checkmarks on pre-printed forms.2 Next, the occupants argue that although the apartment is owned by the PING through a revocable trust, it was originally purchased by the PING’s deceased husband for the benefit of Lily Lee, and that the alleged wishes of the PING’s deceased husband as to the use and disposition of the apartment should pre-empt the judgment of the guardian. This argument is barred by the doctrine of res judicata, the identical issue having been fully briefed by the parties and rejected by the November 13, 2020 Order (see e.g. Hae Sheng Wang v. Pao-Mei Wang, 96 AD3d 1005 [2d Dept 2012]). Finally, the occupants contend in opposition that they have been deprived of their due process right to be heard prior to the entry of an order requiring them to vacate the PING’s apartment. This argument is plainly without merit. The occupants have been present, through counsel, at each and every court appearance, and have submitted written opposition to both motions. Indeed, their counsel has quite effectively managed to shield them from the decisions of the Court for nearly a year. Whatever the occupants’ substantive arguments against the instant motion may be, the suggestion that they have been deprived of notice or an opportunity to be heard on these issues is plainly belied by the procedural history of this case. In summary, the occupants have repeatedly violated orders and directives of this Court relating to the sale of the apartment, prioritizing their immediate material benefit over the longterm care, support, and maintenance of the PING. In defense of their conduct, the occupants have offered vague, unsubstantiated excuses for their noncompliance and recalcitrance, while refusing to participate meaningfully in good faith negotiations as to a solution whereby the occupants could remain in the apartment without depleting the assets of the PING. This conduct, over the course of nearly a year, while the PING’s financial situation continued to worsen, has resulted in this dissipation of the PING’s assets, such that her safety and welfare has been endangered. Accordingly, the guardian’s motion is granted, and it is hereby ORDERED that LILY LEE and ROBERT DOBKIN are enjoined from residing in the condominium apartment known as 110 W. 90th St., Apt. 1G, New York, NY 10024-1208, and further enjoined from storing any personal property therein, and are directed to vacate the apartment, leaving same in a vacant and broom clean condition, and deliver all copies of the keys to THOMAS PIETRANTONIO, ESQ., within fourteen (14) days after a copy of this Order with Notice of Entry has been served upon them in the manner set forth in CPLR 308; and it is further ORDERED that the Sheriff of the City of New York shall serve a copy of this Order upon LILY LEE and ROBERT DOBKIN without undue delay, and it is further ORDERED that the provisions of this Order shall be enforceable by the Sheriff of the City of New York, who shall have all powers reserved by law, and it is further ORDERED that the failure of LILY LEE and ROBERT DOBKIN to comply with the terms of this Order may be deemed contempt of Court and may result in a fine, imprisonment, or both, according to law. Dated: June 28, 2021
