Vincent V. v. Nassau Cnty. Dep't of Soc. Servs.
| Decision Date | 07 October 2020 |
| Docket Number | Index No. 31688/15,2019–03918,2019–10147 |
| Citation | 187 A.D.3d 764,131 N.Y.S.3d 681 |
| Parties | In the Matter of VINCENT V. (Anonymous). Robert Baranello, etc., Petitioner-Respondent; v. NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, interested Party-Respondent; Debra V. Isler, etc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Law Offices of Isler & Isler, Syosset, N.Y. (Debra V. Isler pro se of counsel), for appellant.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, ROBERT J. MILLER, JJ.
DECISION & ORDER
In a guardianship proceeding pursuant to Mental Hygiene Law article 81, in which Debra V. Isler, the temporary property management guardian of Vincent V., moved to settle her final account, Debra V. Isler appeals from (1) an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), dated February 7, 2019, and (2) an order of the same court dated June 11, 2019. The order dated February 7, 2019, insofar as appealed from, upon judicially settling the final account of Debra V. Isler, awarded her compensation in the total sum of only $6,930. The order dated June 11, 2019, insofar as appealed from, in effect, upon reargument, adhered to so much of the prior determination in the order dated February 7, 2019, as awarded compensation in the total sum of only $6,930.
ORDERED that the appeal from the order dated February 7, 2019, is dismissed, without costs or disbursements, as the portion of the order appealed from was superseded by so much of the order dated June 11, 2019, as was, in effect, made upon reargument; and it is further,
ORDERED that the order dated June 11, 2019, is affirmed insofar as appealed from, without costs or disbursements.
This guardianship proceeding was commenced pursuant to Mental Hygiene Law article 81. The appellant was appointed to serve as a temporary property management guardian for the allegedly incapacitated individual pursuant to Mental Hygiene Law § 81.23. The petition was later withdrawn after the allegedly incapacitated individual demonstrated the capacity to execute advanced directives.
In an order dated February 7, 2019, the Supreme Court, among other things, judicially settled the appellant's final account, and awarded her compensation for her services as a temporary property management guardian in the total sum of $6,930. The appellant subsequently moved for leave to reargue the portion of the determination that awarded her compensation in the total sum of only $6,930. The appellant contended that the compensation that was awarded for her services as temporary property management guardian was unreasonable in light of, among other factors, her status as an attorney and her experience in this area of the law. In an order dated June 11, 2019, the court, inter alia, in effect, upon reargument, adhered to so much of its prior determination as awarded the appellant compensation in the total sum of $6,930.
A court may appoint a temporary guardian at the commencement of a proceeding pursuant to Mental Hygiene Law article 81, or at any subsequent stage of the proceeding prior to the appointment of a guardian, upon a showing of "danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person" ( Mental Hygiene Law § 81.23[a][1] ; see Matter of Fairley v. Fairley, 136 A.D.3d 432, 432–433, 26 N.Y.S.3d 1 ; Matter of Nelly M., 46 A.D.3d 904, 904, 848 N.Y.S.2d 705 ). "The powers and duties of the temporary guardian shall be specifically enumerated in the order of appointment and are limited in the same manner as are the powers of a guardian appointed pursuant to this article" ( Mental Hygiene Law § 81.23[a][1] ; see Matter of Lillian A., 56 A.D.3d 767, 768, 868 N.Y.S.2d 695 ).
"Prior to the expiration of the term of appointment, the temporary guardian shall report to the court all actions taken pursuant to the order [of] appointment" ( Mental Hygiene Law § 81.23[a][1] [footnote omitted] ). At that time, "[t]he court may approve a reasonable compensation for the temporary guardian" (id. ). "[H]owever, if the court finds that the temporary guardian has failed to discharge his or her duties satisfactorily in any respect, the court may deny or reduce the amount of compensation or remove the temporary guardian" (id.; see Matter of Lillian A., 56 A.D.3d at 768, 868 N.Y.S.2d 695 ; cf. Mental Hygiene Law § 81.28[b] ).
As the language of the statute demonstrates, "[i]t is within the discretion of the Supreme Court to determine what, if any, compensation is due to a fiduciary of an [allegedly] incapacitated person or an attorney representing such a fiduciary" ( Matter of Joshua H. [Grace N.], 80 A.D.3d 698, 699, 914 N.Y.S.2d 914 ; see Matter of Frank C. [Hyman], 102 A.D.3d 683, 684, 958 N.Y.S.2d 164 ). "In determining reasonable compensation, the court should consider, among other factors, the time commitment involved, the relative difficulty of the matter, the nature of the services provided, [the temporary guardian's] experience and the results obtained" ( Matter of Fairley v. Fairley, 136 A.D.3d 432, 433, 26 N.Y.S.3d 1 [internal quotation marks omitted]; accord Mental Hygiene Law § 81.28[a] ; Matter of Goldstein v. Zabel, 146 A.D.3d 624, 629–630, 45 N.Y.S.3d 432 ). In general, "the compensation awarded should be commensurate with the services actually rendered" (Supreme Court of the State of New York Appellate Division: Second Judicial Dept, Best Practices, Guardianship Proceedings, April 15,...
To continue reading
Request your trial