In the Matter of Rebecca P., 2009 NY Slip Op 51557(U) (N.Y. Sup. Ct. 7/16/2009)

Decision Date16 July 2009
Docket NumberXXXXXX/06
Citation2009 NY Slip Op 51557
CourtNew York Supreme Court

Petitioner Rebecca P. represented by: MAZUR CARP & RUBIN, PC, by Robert M. Freedman, Esq., New York, NY, and by LAW OFFICES OF THOMAS SCIACCA, PLLC, by Thomas Sciacca, Esq., New York, NY.

Respondent Shari P. represented by: MENTAL HYGIENE LEGAL SERVICE, INC., by Gloria Zeche, Esq., New York, NY.

Guardian Martin Evans represented by: BRESSLER, AMERY & ROSS, P.C., by David H. Pikus, Esq. & Kenneth M. Moltner, Esq., New York, NY.

Andrea P. represented by: GREENBERG TRAURIG, LLP, by Israel Rubin, Esq., New York, NY.


Petitioner Rebecca P. ("petitioner" or "Rebecca") moves for an order terminating the appointment of the Guardian of the Property Martin Evans ("Guardian Evans") pursuant to Mental Hygiene Law ("MHL") §§ 81.36(a)(1) and 81.36(d), restoring the property remaining in the hands of Guardian Evans to respondent Shari P. ("respondent," "Shari" or "Incapacitated Person") pursuant to MHL § 81.36(e), and if the above relief is not granted, removing Guardian Evans for cause. Guardian Evans opposes the third branch of the motion seeking his removal for cause, but takes no position on the other two branches of the motion, and cross-moves for an order transferring the motion to the Hon. Sherry Klein Heitler, J.S.C. pursuant to CPLR § 2217. Petitioner opposes the cross-motion and submits a reply to the motion. Both the motion and cross-motion are consolidated herein for disposition.

Procedural History

In January 2006, petitioner commenced this proceeding under Article 81 of the MHL to appoint a guardian of the property for her daughter, Shari, who was then residing in New York county1 . (See Exhibit "C" to the Motion.) In the verified petition, petitioner alleged that Shari suffers from "mental disorders and substance addiction, resulting in her complete inability to adequately manage her assets" and "making her a shadow of the person she once was." Id., at ¶¶ 2 and 4. Specifically, petitioner alleged a litany of self-destructive behavior as follows: (1) Shari lost custody of her daughter due, in part, to her inability to control her drug addiction and a failed suicide attempt in front of her then three-year old daughter, (2) Shari was the subject of a criminal investigation for prescription drug fraud, (3) Shari removed herself from a drug rehabilitation program against the advice of doctors, (4) Shari turned over complete control of her assets to a New Jersey attorney whom she never met before, has been disciplined three times and filed for federal bankruptcy protection, and (5) Shari has been financially exploited by unscrupulous individuals who have allegedly swindled her out of perhaps hundred of thousands of dollars. Id., at ¶ 4. In February 2006, Shari was involuntary committed to Gracie Square Hospital.

At a hearing on March 7, 2006, Shari consented to the appointment of a property guardian. The next day, the Hon. Lucindo Suarez, J.S.C., issued an order and judgment appointing Carolyn W., as Shari's property guardian. (See Exhibit "D" to the Motion.) On April 28, 2006, the Hon. Sherry Klein Heitler, J.S.C., relieved Ms. W. and appointed Guardian Evans, a retired Justice of the Supreme Court, in her place. (See Exhibit "E" to the Motion.) On May 4, 2006, Guardian Evans quickly obtained his commission to act as Shari's property guardian.

In or about November 2007, petitioner moved to remove Guardian Evans for the same or similar grounds alleged in this instant motion. (See Exhibit "1" to the Cross-Motion.) After two conferences, the Hon. Sherry Klein Heitler, J.S.C., by order dated April 11, 2008, directed Rami P. Kaminski, M.D. ("Dr. Kaminski") to conduct a psychiatric examination of Shari and provide a written report to determine whether Shari continues to need a property guardian to manage her finances. Dr. Kaminski submitted to the court a report dated June 20, 2008, wherein he recommended the continuation of the guardianship.

After a conference on February 2, 2009, this Court directed Dr. Kaminski to re-examine Shari, provide a written report and to testify at a hearing concerning whether Shari requires a property guardian. Dr. Kaminski submitted his report dated February 5, 2009, reiterating his prior recommendation for Shari's property guardian to remain in place. (See Court Exhibit "1").

Hearing and Witnesses

This Court conducted an extensive hearing of this matter on March 30, and April 6, 2009. This Court called Dr. Kaminski as a witness. Rebecca P., Shari P., and Martin Evans also testified at the hearing. Post-trial memoranda of law were submitted on May 21, 2009.

Findings of Fact

Since 2004, Shari has been estranged from her mother, Rebecca, and her sister, Andrea P. ("Andrea"). (See Exhibit "B" to the Motion at ¶ 2.) Her estrangement has continued after the appointment of Guardian Evans. Rebecca admitted that she had very little contact with Shari from 2006 through March, 2009. Her only face to face communications with Shari occurred in brief exchanges in the courthouse. Other than the brief encounters in the courthouse, Shari candidly testified that she only had one "very short" phone conversation with her mother for only a few minutes which Rebecca believed lasted for more than an hour. (Transcript at p. 104.) Rebecca acknowledges that almost all of the information she received about Shari came through Guardian Evans due to her estrangement from her daughter.

Based on his first examination of Shari in May 2008, Dr. Kaminski suspected that Shari was still abusing drugs. However, Shari denied any drug or alcohol use. In order to verify her denial, Guardian Evans arranged for a hair follicle test to screen Shari for drug use. Shari tested negative. (Court Exhibit "1".) After Dr. Kaminski reviewed the results of Shari's drug test, he examined her again in February, 2009, and opined that Shari had "lingering cognitive deficits, perhaps due to the drug abuse of the past." (Transcript at p. 127, lines 14-15.)

Rebecca now believes that Shari does not need a property guardian because she no longer abuses drugs. Rebecca points to Guardian Evans' deposit of about $10,000 a month into Shari's personal bank account in which Shari pays her own bills as a further indication that Shari is capable of managing her daily living expenses.

Notwithstanding her mother's assessments, Shari convincingly testified that she is overwhelmed and unable to manage her multi-million dollar estate and the on-going litigation. Given her past financial exploitation that precipitated the advent of this Article 81 proceeding and the complex litigation overseen by Guardian Evans to recover substantial sums allegedly misappropriated from her, Shari does not trust her judgment at her current stage of life. Shari testified to the extraordinary trusting relationship she maintains with Guardian Evans as follows:

I don't trust anybody else. I have a relationship with my guardian presently, a very good one. And it works. A good working relationship. I understand what he says. He understands what I say. And I am very comfortable. I trust him with my money.

He has made me a lot of money, thank goodness, and he also managed to save my money for me. And I am able to eat and take care of myself and so on and so forth because of it.

(Transcript at p. 109.)

Shari clearly wants Guardian Evans to "finish what he started" and his removal would have a "very negative" impact on her. (Transcript at pgs. 110 and 115.) However, Shari was confident that she will not need a guardian for the rest of her life, but realized that "today is not the date for that." (Transcript at p. 115.)

While Guardian Evans has not taken a formal position in written opposition to the motion as to whether Shari should continue with a property guardian, his testimony reiterates Dr. Kaminski's professional opinion and Shari's intuitive sense. Guardian Evans persuasively testified that Shari is currently not ready to handle all of her financial affairs as follows:

I want to make sure she knows what she is doing. Right now she is highly emotional, particularly when it comes to her family. She believes her mother and her sister have stolen money from her . . . . She is very suspicious of several other people. I want to make sure she knows exactly what she is doing and is competent to understand it before I come to any final conclusion.

(Transcript at pgs. 243-244.)

Conclusions of Law

Discharge of Guardian

The court may discharge a guardian, or modify the powers of the guardian, if the "incapacitated person has become able to exercise some or all of the powers necessary to provide for personal needs or property management which the guardian is authorized to exercise." MHL § 81.36(a)(1). The burden of proof of clear and convincing evidence rests on the person objecting to the termination of the guardianship or restoration of certain powers back to the incapacitated person. MHL § 81.36(d). The salutary purpose for placing such a burden on the objecting party, rather than on the proponent, is to "lessen the difficulty of an incapacitated person seeking to gain more control over his or her life." Law Revision Commission Comments on MHL § 81.36.

In this case, it is apparent based on clear and convincing evidence that Shari continues to require a property guardian. This conclusion is aptly supported by the expert opinion of Dr. Kaminski and the lay opinions of Guardian Evans and Shari herself.

Dr. Kaminski is a noted board certified psychiatrist who presents impeccable credentials serving as director of inpatient services at Mt. Sinai Hospital from 1985-1996, former medical director of the New York State Office of Mental Health and Commissioner of the...

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