PAPERS CONSIDERED: Transcripts of the proceeding 1-4 The oral application by the petitioner — daughter during the hearing of the proceeding at bar presented an issue of first impression in contested Article 81 guardianship proceedings: whether the petitioner can discontinue the proceeding with, or without, a court order, pursuant to CPLR §3217 (a) or (b), after the petitioner rested, and after extensive testimony by the petitioner, the temporary guardian, the geriatric care manager and the court evaluator has been taken in the proceeding for the appointment of a guardian for the personal and property management needs of respondent — mother, an alleged incapacitated person (“AIP”). Article 81 of the Mental Hygiene Law does not include a provision which sets forth the procedure for discontinuing a guardianship proceeding and the subsequent issue of the payment of fees incurred for professional services rendered. Nevertheless, it is not unusual for a guardianship proceeding to be “withdrawn” or discontinued since the alleged incapacitated person my pass away prior to the hearing. Thus, the voluntary discontinuance of an Article 81 guardianship proceeding is governed by CPLR 3217 (a) and (b), which unfortunately has never been amended to integrate any of the provisions of Article 81 proceedings since the enactment of Article 81 thirty years ago. CPLR 3217, entitled “Voluntary discontinuance” reads in pertinent part: “(a) Without an order. Any party asserting a claim may discontinue it without an order 1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court; or 2. by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action [emphasis added];. (b) By order of court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.[emphasis added]“ Article 81 proceedings for the appointment of a guardian for the respondent do not, by their very unique nature, fit neatly within the three chronological phases set forth in CPLR 3217. A guardianship proceeding is unlike other actions and special proceedings since the respondent, the individual alleged to be “incapacitated,” is not accused of wrongdoing or fault (see Matter of Spadafora, 54 Misc 2d 123, 125, affd 29 AD2d 742; see generally In re Flight, 296 AD2d 845, 744 N.Y.S.2d 920, 921 [4th Dept. 2002]). Nevertheless, since the respondent can lose her or his civil liberties guaranteed by the United States and New York State Constitutions, Article 81 of the Mental Hygiene Law was designed by the Legislature to be an adversarial process, not a collaborative or mediative one, in an effort to protect the respondent’s liberty interests (see, Mental Hygiene Law §81.01). The statute presumes that the individual is not incapacitated until it is proven by the highest standard of proof, clear and convincing evidence (see Mental Hygiene Law 81.02 [b]). Although the alleged incapacitated person may consent to the appointment of a guardian for her or his personal or property management needs (see Mental Hygiene Law §81.02 (a) [2]), the petitioner and the AIP cannot simply stipulate to that appointment since Mental Hygiene Law §81.11 (a) requires that the “determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing.” In making that determination the court is required to appoint, at the very least, a neutral party, a court evaluator, who is required to report to the court at the hearing regarding whether inter alia the appointment of a guardian is necessary to protect the alleged incapacitated person from harm (see Mental Hygiene Law §81.09). The court can appoint counsel for the alleged incapacitated person or the AIP can retain their own counsel (see Mental Hygiene Law §81. 10 (a), (c) [7]). Thus Article 81 gives an individual the opportunity to fight against and object to the deprivation of their freedom, and their right to make their own decisions and conduct their life the way they see fit (see, Matter of Caminite (Amelia G.), 57 Misc 3d 720, 721-722, 62 N.Y.S.3d 724, 725-726 [County Court, Nassau Co., 2017]). In the proceeding at bar, prior to the continued cross-examination of the court evaluator via Microsoft Teams, this Court denied on the record the oral motion by the petitioner’s counsel, joined in by court-appointed counsel for the AIP, to withdraw the entire petition based upon CPLR 3217 (b). Consequently, Michelle R. consented to having, for a one-year period with a specific expiration date, her husband serve as her personal needs guardian, and to have an independent person from the Part 36 fiduciary list be appointed her property management guardian with limited powers. The denial of the oral motion was never reduced into a written order. Subsequent to the denial of the motion to discontinue, and subsequent to the settlement of the guardianship proceeding for one year, Justice Mark C. Dillon, writing for the Appellate Division, Second Department, panel in Emigrant Bank v. Solimano, 209 AD3d 153, 175 NYS 3d 299 [2022], extensively analyzed CPLR 3217 (a) and (b), and the conditions for discontinuing actions and special proceedings within the three chronological phases set forth in the statute. Accordingly, this Court will now sua sponte reconsider the issue of whether the initial guardianship proceeding should have been discontinued by this Court pursuant to CPLR 3217 (a)(2) in light of the reasoning and holding in Emigrant Bank, and possibly obviate the need for the scheduled hearing on whether the one-year guardianship proceeding should be renewed or terminated. From its commencement, the guardianship proceeding at bar was beset with difficulties, revealing a dysfunctional family and uncooperative AIP with impaired judgment. An extraordinary amount of time was required to be performed by the court appointees. It was a complex quagmire for the court appointees to navigate, especially since Michelle R. always insisted that she did not need a guardian. However, there were reports made to this court that Michelle R. was not being appropriately cared for and that she was not taking proper care of herself, e.g., that she would drink alcohol excessively, and resided on the second floor of her house even though she was incapable of walking down a spiral staircase.Moreover, this Court conducted several emergency hearings and conferences, regardless of time or day, because Michelle R.’s health and safety were in peril. Michelle R. needed to go to the emergency room frequently to be treated for a panic attack and sepsis shock. Furthermore, there were allegations of financial mismanagement of Michelle R.’s property as well as a pending divorce proceeding against her husband. The actions and intervention by the team of court appointees — the temporary guardian, the geriatric care manager, the court evaluator, and court appointed counsel for Michelle R. — during situations where Michelle R’s health was precarious — were exemplary and were instrumental in saving Michelle R.’s life. Eventually this Court conducted a trial over several days on the issue on the issue of whether a guardian should be appointed for the personal and property management needs of Michelle R. The petitioner, the temporary guardian, the geriatric care manager, and the court evaluator had all testified for the need for the appointment of a guardian for Michelle R. However, prior to the continuation of the cross-examination of the court evaluator, the petitioner orally made an application on the record, joined in by counsel for the alleged incapacitated person, to discontinue the proceeding pursuant to CPLR 3217 (a) (2). Counsel for petitioner argued that even though the allegations made at the time petitioner verified the petition were true, now there was a change in the circumstances: that Michelle R. was now able to ambulate, and take care of many of her activities of daily living, including addressing financial problems. Court appointed counsel for Michelle R. did not object to the discontinuance, maintaining that client’s position was that there was no merit to the guardianship proceeding ab initio. The temporary guardian and the court evaluator both opposed the application. The court evaluator argued that the geriatric care manager’s report did not reveal any evidence that Michelle R. could independently manage her activities of daily living nor her financials, nor any evidence that Ms. R. is aware of the nature and circumstances of her functional limitations and was able to meaningfully engage in a resolution of her circumstances without assistance. The court evaluator also argued that there was no evidence submitted that Michelle R was able to independently manage her finances. This Court denied on the record the application to discontinue pursuant to CPLR 3217 (b), that the movants could not simply invoke CPLR 3217 (a) (2) at this point in the proceeding, that the petitioner — despite her change of heart — had made a prima facie showing that a guardian was needed for Michelle R., and that in view of the geriatric care manager’s report and the testimony of the temporary guardian and court evaluator, the best interests of the AIP required that the proceeding continue until its conclusion. In reaching its decision, this Court also cited the only two reported cases pertaining to discontinuing a guardianship proceeding, Matter of Chachkers (Shirley W.), 159 Misc 2d 912, 606 NYS3d 959 [Sup. Ct., NY County (1993)], and Matter of Bloom (Spear), 1 Misc 3d 910(a), 781 NYS2d 622 [Sup.Ct. Suffolk County, 2004]). Both proceedings were permitted to be discontinued prior to an evidentiary hearing. In doing so Justice Lewis R. Friedman in Matter of Chachkers made several significant interpretations of Article 81, CPLR 3217 and in particular the role of the court evaluator as set forth in Mental Hygiene Law §81.09. Justice Friedman explained that a guardianship proceeding cannot be discontinued by written stipulation pursuant to CPLR 3217 (a) (2) for two reasons: first, “[t]he court must exercise its discretion to determine if the discontinuance is proper and is in the AIP’s best interest,” and second “[t]he court evaluator, an independent person acting to investigate and [make] recommendations to the court [as to whether a guardian should be appointed] must be heard before any disposition. Thus [the court evaluator] should be considered to be a ‘party.’ In that manner the court fulfills its “duty” to protect litigants who may actually be incapacitated but have not been judicially declared such [citations omitted]. The enumerated powers of a court evaluator do not include consent to a discontinuance. The court will not add that power by implication because it is incompatible to the court evaluator’s role for her to make a binding decision to effect the outcome of the case. Absent a court order, even if the court evaluator were inclined to do so, she may not consent to discontinuance… Therefore, the only manner of discontinuance permissible is by court order pursuant to CPLR 3217[b]“ (In re Chachkers, 159 Misc 2d 912, 913-915, 606 NYS2d 959, 900-901 [Sup. Ct. NY County 1993). Unfortunately, although the recent Second Department decision in Emigrant Bank did discuss in dicta that special proceedings are discontinued in the same manner as actions in accordance with CPLR 3217's formula, the court did not discuss (nor was there any basis to discuss) the conundrum of the "parties" in an Article 81 special proceeding stipulating, pursuant to CPLR 3217 (a)(2) or CPLR 3217 (b), to discontinue the guardianship proceeding before the court would begin deliberations on the issue of whether a guardian should be appointed for the alleged incapacitated person. Justice Dillon, writing for the Court, stated that CPLR 3217 "recognizes three distinct time periods during the life of an action where a discontinuance may be sought by the plaintiff, and treats each differently. The first, embodied in CPLR 3217(a)(1), is the time before a responsive pleading is served, or if no responsive pleading is required, within 20 days after service of process and the filing of proof of service with the clerk of the court. At that juncture, a discontinuance may be effected by the mere service of a notice of discontinuance [citation omitted]. This procedure is the “easiest” means of discontinuance, as it recognizes that at such an early stage of an action or proceeding, the court and the parties have invested little time, effort, and expense in connection with the case, so that the service of a mere notice suffices. The second time frame for a discontinuance is the period between the responsive pleading (see CPLR 3217[a][1]) and the point just before the case is submitted to a court or a jury for a determination of the facts of the claim. As to that broad time frame, as relevant herein, the discontinuance of an action may be effected by the filing of a written stipulation executed by the attorneys of record for all of the parties [citations omitted. Alternatively, between the joinder of issue and the submission of the case to a court or a jury for factual determinations, a discontinuance may be obtained, without a stipulation of the parties, by a court order upon terms and conditions that the court deems proper (see CPLR 3217[b]; [citations omitted]. The third stage of a litigation, as relevant to a discontinuance, is the period after the case has been submitted to the court or the jury for a determination of the facts. Once an action or a proceeding has advanced to the point of deliberation and fact-finding, there can be no discontinuance except by leave of court upon such terms and conditions as the court deems proper and a stipulation of all parties appearing in the action [citations omitted]. In other words, at this juncture, the requirements imposed upon the discontinuing party are double-layered. The refusal by a defendant to consent to a discontinuance, for whatever reason, operates as a veto on the issue, as it prevents the court from even reaching its discretionary authority to consider the requested discontinuance. Thus, CPLR 3217, viewed in its entirety, operates like a see-saw, allowing for discontinuances by mere unilateral notice at the earliest stage of a litigation, while imposing incrementally greater requirements upon the party seeking the discontinuance the farther the litigation progresses. The statute is easily applied in cases that go to trial. In such instances, the submission of the case to a jury for its findings of fact, or the submission of the case to a court during a bench trial, operates as a bright line separating the discontinuance that may be sought using the pre-deliberative mechanisms of CPLR 3217(a)(2) and (b) from the mechanism of CPLR 3217(b) which attaches once the deliberative phase begins Thus, CPLR 3217, viewed in its entirety, operates like a see-saw, allowing for discontinuances by mere unilateral notice at the earliest stage of a litigation, while imposing incrementally greater requirements upon the party seeking the discontinuance the farther the litigation progresses.” (Emigrant Bank v. Solimano, 209 AD3d 153, 158-160, 175 N.Y.S.3d 299, 305-306 [2nd Dept. 2022]). The omission by the Legislature to address voluntary discontinuances in guardianship proceedings when Article 81 was enacted 30 years ago, and the failure by the Legislature to amend CPLR 3217 (a)(2) and Article 81 to consider the ramifications of voluntarily discontinuing a guardianship proceeding by stipulation during the “broad time frame…. between the responsive pleading and the point just before the case is submitted to a court or jury for a determination of the facts of the claim,” has created a very problematic scenario for a guardianship trial court, the equivalent of putting a square peg into a round hole. CPLR 3217 (a)(2) does not contemplate the discontinuance by the petitioner of a guardianship proceeding before a guardian has been appointed for the alleged incapacitated person; it does however “explicitly bar discontinuance by stipulation where an infant, conservatee, or incompetent for whom a committee has been appointed is a party” (7 Weinstein-Korn-Miller, NY Civ Prac P 3217.05). It is clear to this Court that the legislative intent of CPLR 3217 (a)(2) was to limit the right to discontinue a conservatorship/guardianship proceeding as a means of protecting “conservatees,” “incompetents” / alleged incapacitated individuals “from the collusive termination of actions when the true parties’ best interests would be better served by continuing the action” (Id.). In other words, an application by the petitioner to discontinue a guardianship proceeding, other than due to the death of the alleged incapacitated person, should only be granted by court order, regardless of whether the petitioner, or the alleged incapacitated and the court evaluator (who in the view of this Court are deemed to be parties to the proceeding), stipulate to that relief. Contrary to CPLR 3217 as presently cast, and the clear explanation of the statute in Emigrant Bank, a guardianship proceeding “crosse[s] the rubicon from its predeliberative stage of CPLR 3217 (a)(1),” and cannot be voluntarily discontinued, in the opinion of this Court, when the court evaluator issues a report and testifies in the proceeding, thus “triggering the statutory condition that a discontinuance at that juncture requires both leave of court and a stipulation of all parties” (Emigrant Bank v. Soliman, supra at 162). Based upon the foregoing principles, this Court adheres to its original decision to deny the application by the petitioner and the alleged incapacitated person, Michelle R., to discontinue this proceeding. The Court has heard extensive testimony from the court evaluator, the geriatric care manager and the temporary guardian that it was not in the best interest of the alleged incapacitated person to permit the withdrawal of the petition. The Court heard sufficient testimony that Michelle R. continuously put herself in harms way, and that she suffers from physical ailments which make it difficult for her to ambulate and take care of herself. Similarly, the Court heard credible testimony that Michelle R. needed assistance in managing her finances. For all these reasons, the Court finds that there was a prima facie showing that the alleged incapacitated person was in need of a guardian, and that the best interests of Michelle R. require the denial of the application to discontinue the initial guardianship proceeding. The foregoing constitutes the decision and order of this Court. Dated: December 20, 2022
