Steven G. v. Gary G. (In re Lillian G.)
| Decision Date | 31 August 2022 |
| Docket Number | 2019–03564,Index No. 100321/16 |
| Citation | 208 A.D.3d 875,174 N.Y.S.3d 442 |
| Parties | In the MATTER OF LILLIAN G. (Anonymous). Steven G. (Anonymous), petitioner-respondent; v. Gary G. (Anonymous), appellant; Judy Mock, etc., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Mischel & Horn, P.C., New York, NY (Scott T. Horn of counsel), for appellant.
Armstrong & Lamberti, PLLC, Staten Island, NY (Anthony J. Lamberti of counsel), for petitioner-respondent.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER
In a guardianship proceeding pursuant to Mental Hygiene Law article 81, Gary G. appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated March 5, 2019. The order, insofar as appealed from, in effect, denied those branches of his motion which were to enforce an order of the same court dated October 24, 2017, directing the guardian of the property of Lillian G., Judy Mock, to reimburse him for legal fees in the sum of $28,500 from the guardianship estate, and to vacate a stipulation dated April 4, 2017.
ORDERED that the order dated March 5, 2019, is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of Lillian G. (hereinafter Lillian), his mother, an alleged incapacitated person. It is not disputed that the petitioner's brother, Gary G. (hereinafter Gary), had been managing Lillian's affairs and had borrowed money from her accounts for his personal use. The Supreme Court adjudged Lillian to be an incapacitated person, appointed Judy Mock as the guardian of Lillian's property, and appointed the petitioner and Gary as the co-guardians of Lillian's person. Pursuant to a stipulation dated April 4, 2017, Gary agreed, among other things, to provide documentation to substantiate that he returned the sums of $100,000, $77,586.26, and $77,591 to Lillian's accounts, and to remove his name from any and all joint accounts that he held with Lillian. The stipulation further provided that Mock would have the authority to change the beneficiary designation for a Hartford Annuity so that the petitioner and Gary were equal beneficiaries, with the understanding that they would be equal beneficiaries on all accounts, and that the petitioner would execute a general release to Gary. These provisions of the stipulation were also set forth in an order and judgment dated June 19, 2017.
In an order dated October 24, 2017, the Supreme Court directed Mock to reimburse Gary for legal fees in the sum of $28,500 from the guardianship estate. In an order dated March 12, 2018, the court conditioned the reimbursement of the $28,500 in legal fees on Gary providing a full accounting and on his submission of proof that he had returned all funds to Lillian's accounts and removed his name from those accounts.
Lillian died on June 8, 2018. Gary moved, inter alia, to discharge Mock due to Lillian's death, to enforce the order dated October 24, 2017, and to vacate the stipulation dated April 4, 2017, due to the alleged breach by Mock in failing to change the beneficiary designation for the Hartford Annuity so that the petitioner and Gary were equal beneficiaries, and the alleged breach by the petitioner in failing to execute a general release to Gary. In an order dated March 5, 2019, the Supreme Court, inter alia, in effect, denied those branches of Gary's motion. Gary appeals.
"Stipulations of settlement, especially those whose terms are placed on the record in open court, are judicially favored, and absent a showing of fraud, overreaching, mistake, or duress, the stipulation should not be disturbed by the court" ( Perry v. McMahan, 164 A.D.3d 1490, 1491, 84 N.Y.S.3d 507 ; see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ). "It is the party seeking to set aside the stipulation of settlement who has the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable" ( Sweeney v. Sweeney, 71 A.D.3d 989, 992, 898...
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