Kover v.

• Citation: 19 N.Y.S.3d 228,134 A.D.3d 64,2015 N.Y. Slip Op. 07802
• Parties: In re Elihu KOVER, etc., Petitioner–Respondent, For the Appointment of a Guardian of the Person and Property of Eva Dworecki, An Alleged Incapacitated Person. Burton Citak, et al., Nonparty Appellants.
• Decision Date: 27 October 2015
• Court: New York Supreme Court Appellate Division

134 A.D.3d 64

19 N.Y.S.3d 228

2015 N.Y. Slip Op. 07802

In re Elihu KOVER, etc., Petitioner–Respondent, For the Appointment of a Guardian of the Person and Property of Eva Dworecki, An Alleged Incapacitated Person. Burton Citak, et al., Nonparty Appellants.

Supreme Court, Appellate Division, First Department, New York.

Oct. 27, 2015.

Law Office of Peter Wessel, PLLC, New York (Peter Wesselof counsel), for appellants.

Law Offices of Annette G. Hasapidis, Mt Kisco (Annette G. Hasapidisof counsel), for respondent.

Opinion

ANDRIAS, J.

The nonparty appellants, Burton Citak (Burton) and Donald L. Citak (Donald), by their firm Citak & Citak, represented Dr. Eva Dworecki, the alleged incapacitated person (AIP), in this guardianship proceeding. In this appeal, there are two primary issues before us.

The first is whether the court abused its discretion when it imposed monetary sanctions and/or costs pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) 130–1.1upon Burton and/or Donald based on their conduct in connection with their applications seeking, inter alia, to bar the entry of the coguardianship order and to dismiss the petition. For the reasons that follow, we find that Donald, but not Burton, engaged in frivolous conduct within the meaning of 130–1.1, and that the imposition of sanctions and costs against Donald was not an abuse of discretion. However, as to the amount and scope of the costs, we vacate the award and remand for compliance with 22 NYCRR 130–1.2in accordance with this decision.

The second issue is whether the court erred in denying Citak & Citak any attorney's fees. We find that the denial of all fees is not warranted and that Citak & Citak is entitled to the reasonable fees for the work performed prior to Donald's sanctionable conduct.

Although it is a primary focal point of the dissent, which believes that neither Citak should be sanctioned for his “missteps” and that the court below is to blame for everything that transpired, the issue of whether the court erred in entering the coguardianship order, without either confirming the consent of Dr. Dworecki or conducting a capacity hearing, is not before us. Indeed, the attorney who replaced Citak & Citak as counsel for Dr. Dworecki represented to the court at the sanctions hearing that she discussed the temporary coguardianship at length with Dr. Dworecki and “was very confident ... that she had no desire to appeal.” Nor, under the particular circumstances of this case, where Donald initiated, participated in and consented on behalf of Dr. Dworecki to the procedure adopted by the court, then denied his role and falsely accused the court of wrongdoing and fraud, would any such error, in and of itself, excuse the sanctionable conduct at issue, including Donald's material false statements in support of his applications.

Pursuant to article 81 of the Mental Hygiene Law, in July 2012 petitioner, as Vice President of Nazi Victims Service Programs of Self Help Community Services, Inc. (Self Help), sought to have a guardian appointed for the person and property of Dr. Dworecki, age 94. Self Help had been providing community based services to Dr. Dworecki since 2002 and was concerned that her short term memory, judgment, and ability to perform the activities of daily living had been declining and that she was refusing to obtain necessary additional home care services. This included Dr. Dworecki's inability to cook, clean her apartment and person, and manage her medications by herself.

Dr. Dworecki's friend and financial advisor, Edward Muster, procured Citak & Citak to represent her in opposing the petition. Mr. Muster is the primary beneficiary under Dr. Dworecki's Last Will & Testament, executed on August 11, 2010. Although Mr. Muster claims that he was not present when the will was executed, he states in an affidavit that “[p]rior to the preparation of the Will, [Dr. Dworecki] told me what she wanted included in the Will. As on other occasions, I followed [her] instructions.” Thus, it appears that he was responsible for its preparation. The Citaks also acknowledge that on August 7, 2012, after being retained to defend this proceeding, they prepared, and filed in the Surrogate's Court, a new will for Dr. Dworecki which did not materially change the terms of the 2010 will.

Mr. Muster is also Dr. Dworecki's attorney-in-fact under a power of attorney executed on March 20, 2012. At the commencement of this proceeding, the court restrained him from using the power of attorney until the hearing of the application, and appointed Matthew Milford, Esq., as the neutral Court Evaluator to report on Dr. Dworecki's condition. During the four month period between the execution of the power of attorney and the issuance of the stay, Mr. Muster had not used his authority under the instrument to obtain any of the additional personal and home care services that Dr. Dworecki needed to address the issues that Self Help had identified.

In his report dated August 7, 2012, the Evaluator stated that Dr. Dworecki seemed confused when he told her that Burton was her attorney. Noting that Mr. Muster had procured Burton, the Evaluator stated that the “nature of this apparent conflict of interest is unclear to the Affirmant.”

Although the Evaluator believed that Mr. Muster competently managed Dr. Dworecki's assets, he opined that Mr. Muster “has not been able to provide for her personal needs satisfactorily up [to] the present moment. Thus, pursuant to the Affirmant's recommendation, it may be necessary to appoint a guardian of the person and property of Dr. Dworecki.” The Evaluator noted that Dr. Dworecki had a number of health issues that compromised her ability to handle her affairs of daily living satisfactorily, including irreversible functional deficits. While Dr. Dworecki believed that she had more ability to manage activities of daily living than she in fact did, that false belief was based in large part on her extreme frugality. In that regard, the Evaluator noted that Dr. Dworecki “may not fully understand the extent of her wealth and the ease with which she could provide herself with all the assistance she clearly requires.”

Despite these findings, the Evaluator suggested that the court consider the sufficiency and reliability of alternative resources to provide for Dr. Dworecki's needs without the appointment of a guardian. Towards this end, the Evaluator recommended that the court reinstate Mr. Muster's power of attorney and adjourn the case to provide him with a short period of time to get Dr. Dworecki the additional personal and home care services she needed. However, the Evaluator also stated that “[i]f the Court finds it necessary to appoint a Guardian for the Person and/or Property, the Guardian should be appointed for an indefinite period of time. The powers outlined in [the] Petition should be granted.”

At an August 9, 2012 court conference, Dr. Dworecki appeared, represented by Burton. Mr. Muster and the Evaluator were also present. After conferring with the attorneys and the Evaluator, the court told Dr. Dworecki that they had been discussing whether something could be put in place that would enable her “to have all of the services that you need so that we're sure that you are safe and you are not at risk in any way and that your are comfortable without having a guardian necessarily appointed for you.” The court explained that in furtherance of that goal, the attorneys had agreed that an interim special guardian should be appointed by the court for a trial period during which the extent of her needs would be assessed, and that this had to be done by a neutral, rather than an interested party. Dr. Dworecki acknowledged her need for assistance and agreed with the court that a trial period to ensure that she received the necessary services right away, and to evaluate her needs, “ma[de] sense.”

The court next informed Dr. Dworecki that Mr. Muster could continue to help with her fixed expenses, such as rent and telephone, but that the new special services would be implemented by the interim special guardian, and that Dr. Dworecki would have to pay for those services. In open court, Burton reiterated to Dr. Dworecki that she had to pay for the new services and that the purpose of the trial period was to assess the extent of the services needed, after which a decision would be made as to which services were worthwhile. The court then adjourned the matter for several months during which the alternative resources provided to Dr. Dworecki would be monitored to determine whether there was a need for a permanent guardian.

To effectuate the plan, by order dated August 10, 2012, the court, based on Dr. Dworecki's acknowledgment of her need for assistance and consent, appointed Sabrina Morrissey, Esq., as the interim special guardian for the trial period. The court also revoked any power of attorney or health care proxy previously executed by Dr. Dworecki and, as agreed, permitted Mr. Muster, to continue to assist Dr. Dworecki in paying her monthly bills.

In four reports over the next five months, Ms. Morrissey outlined the services that she put in place for Dr. Dworecki. In addition to hiring home health aides, Ms. Morrissey obtained Dr. Dworecki's consent to cataract surgery

, which Mr. Muster had been unable to obtain, which restored her ability to read. Ms. Morrissey also obtained Dr. Dworecki's cooperation for new personal and home care services, including physical therapy, which improved Dr. Dworecki's ambulation, as well as regular visiting nurse services, dental care, additional meal delivery and house cleaning. She also improved Dr. Dworecki's social interaction by retaining service providers who spoke German and Spanish, which Dr. Dworecki spoke and wanted to practice, and by arranging for holiday dinners and celebrations. Based on the vast improvement that these services had made in the quality of Dr. Dworecki's life, Ms. Morrissey believed that a permanent...