Matter of Allen
Annotate this CaseDecided on November 17, 2005
Supreme Court, Tompkins County
In the Matter of the Application of Richard and Louise, Copetitioners, for the Appointment of a Guardian of the Person and Property of Allen, an Alleged Incapacitated Person.
2005-05XX
Daniel L. Hoffman, Esq.
LoPinto, Schlather, Solomon & Salk
Attorneys for George
200 E. Buffalo Street, PO Box 353
Ithaca, NY 14851
Katrina A. Thaler Medeiros, Esq.
Thaler & Thaler
Attorneys for Richard & Louise
309 North Tioga Street
Ithaca, NY 14850
Richard J. Wenig, Esq.
Mental Hygiene Legal Service
Attorneys for Allen
State Office Building, Floor 16
44 Hawley Street
Binghamton, NY 13901-4435
Eugene E. Peckham, J.
This Mental Hygiene Article 81 proceeding in regard to the appointment of a guardian for [*2]Allen presents a number of significant procedural and substantive issues. The proceeding was begun by the filing of an Order to Show Cause and Petition on or about July 7, 2005. A hearing was held on July 29, 2005. At that hearing, Richard and Louise, Allen's nephew and niece, were appointed as his guardian upon the consent of Allen. The bench decision was thereafter confirmed by Findings and Order dated August 11, 2005.
Shortly before the hearing, George, brother of the respondent, acting pro se, telephoned the office of the court and requested an adjournment of the hearing. He was advised that since he was not a party to the proceeding he could not request an adjournment. George did not appear at the hearing on July 29, 2005. Subsequent to the hearing, George retained an attorney and filed an Answer dated September 22, 2005.
MHL §81.07(e) sets forth the persons entitled to service of the Order to Show Cause: the alleged incapacitated person (AIP), the attorney for the AIP, and the Court Evaluator. MHL §81.07(g) lists persons entitled to notice of the proceeding, which include adult brothers and sisters of the AIP. An Article 81 proceeding is a special proceeding and CPLR §401 states that the parties to a special proceeding are the petitioner and the respondent. A cross motion or petition could be filed for relief different than was sought in the petition, such as appointment of a different guardian than was asked in the petition thereby making the cross petitioner a party. CPLR §407 and 2215; Abrams, Guardianship Procedure in New York State, p.581. No such cross petition was filed in this proceeding. An answer was subsequently filed by George on or about September 22, 2005, but it did not contain any such cross petition.
The answer must be dismissed insofar as it attempts to deny the need for a guardian both because it was untimely, CPLR §403(b), and also as hereinafter discussed because George is neither the respondent nor a party to the proceeding for the appointment of a guardian. CPLR §401.
MHL §81.07 was amended effective December 13, 2004 by Laws 2004 ch.438. The amendment removed the persons entitled to notice of guardianship proceeding (generally relatives, friends and persons holding a power of attorney or health care proxy from the AIP) from former subsection (d) and placed them in subsection (g). Former subsection (d) was entitled "Service", and provided in subparagraph (2)(iii) that the relatives, etc. "shall be personally served or served by mail." This created some confusion as to whether the persons listed in former subsection (d) were parties to the proceeding entitled to participate in the hearing for the appointment of a guardian.
New subsection (g) is entitled "Persons entitled to notice of the proceeding" and provides in subparagraph (2) that "Notice of the proceeding...shall be mailed to..." the relatives, etc. This is clearly not the type of personal service of process that is required to make a person a party defendant or respondent in the proceeding. CPLR §§304, 306, 306-b and 308. The amendment of MHL §81.07 effectively corrects statutorily any prior implication that the relatives, etc. entitled to notice of the proceeding are parties entitled to participate in the hearing, request adjournments, etc. Thus the persons listed in amended MHL §81.07 (g), including George in this case, are not parties to the proceeding. See also CPLR §401. George's request for an adjournment was properly denied.
However, the petition also requested a temporary restraining order (TRO) against George as permitted by MHL §81.23 (b). The petition alleged that George used a power of attorney he [*3]obtained from Allen while Allen was incapacitated to "clean out Allen's bank accounts "and sell all of Allen's personal property." The Order to Show Cause that was signed granted the request for a TRO.
Subsequent to the hearing on July 29, 2005, counsel retained by George contacted the court by letter dated August 9, 2005 and requested that the hearing be reopened both as to the appointment of guardians for Allen and the TRO against George. The Court responded by denying the request to reopen the hearing as to the appointment of the guardians, but granted the request for a hearing on the TRO. The request to reopen the guardianship hearing was properly denied both because Allen consented to the appointment of the guardians and because George was not a proper party to that proceeding. A hearing was held on October 13 and 25, 2005, regarding the TRO. At that hearing, the Court suggested to the parties and their counsel that the proceeding was really in the nature of a discovery proceeding pursuant to MHL §81.43. The parties, through their counsel, agreed that to the extent necessary the pleadings would be amended to conform to the evidence and treat the matter as a discovery proceeding under MHL §81.43. CPLR §3025(c)
During the hearing counsel for George called Allen as a witness. Objections were raised based on this Court's decision in Matter of United Health Services Hospitals, 6 Misc 3d 447 (Sup. Ct. Broome Co. 2004) and also CPLR 4501. In a bench decision, the Court allowed Allen to be called as a witness and testify.
In the United case the Court held that the AIP could not be called as a witness by the petitioner at an Article 81 guardianship hearing. The decision was based upon the constitutional right not to be called as a witness against yourself in a "proceeding where that person's liberty is at stake." In the present case the decision has already been made to appoint a guardian for Allen and so any infringement upon his liberty had already been decided. The present hearing is a civil proceeding under MHL §81.43 involving the discovery of property claimed to belong to Allen and whether a decree should direct George to return such property to Allen or his guardians. Thus the constitutional question does not arise, since Allen's liberty is not at stake.
CPLR §4501 provides: "A competent witness shall not be excused from answering a relevant question, on the ground that the answer may tend to establish that he owes a debt or is otherwise subject to a civil suit."
CPLR §4512 provides: "Except as otherwise expressly prescribed, a person shall not be excluded or excused from being a witness, by reason of his interest in the event or because he is a party or the spouse of a party."
The Court of Appeals has held citing CPLR §§4501 and 4512 that: "It has been recognized in this State that a party in a civil suit may be called as a witness by his adversary and, as a general [*4]proposition, questioned as to matters relevant to the issues in dispute." McDermott v Manhattan Eye Hospital 15 NY2d 20 (1964).
There is no reason why Allen could not be called as a witness by the opposing party in what is essentially a civil property dispute. The holding in United should be limited to Article 81 proceedings for the appointment of a guardian of the person, where the AIP's personal liberty may be curtailed.
Turning to the substantive issues of this discovery proceeding, the petition requests that George be ordered to turnover: 1) two checks in the amount of $7,419.69 and $20,879.11, withdrawn from Allen's credit union accounts, 2) any and all monies received from selling Allen's personal property and/or 3) any and all personal property belonging to Allen located at his former residence. The answer denies the allegations of the petition regarding the above items and asserts by way of counterclaim that Allen owed George: 1) back rent for a house owned by George totaling $195,000 plus utilities of $1,400, 2) repairs to the house owned by George of $14,250 and 3) legal services in a Family Court proceeding provided to Allen and paid for by George in the amount of $4,500.
The basic facts underlying this matter are essentially undisputed and are found as follows:
George and Allen are brothers. Their father died in 1957. Their mother died in 1973 leaving a will (Court Exhibit No.1) in which she left the 125 acre Home Farm to George. Allen resided in a house located on the Home Farm known as 3484 Jacksonville Road his whole life. After their mother died and George inherited the farm, the brothers continued to work the farm together and Allen continued to live in that house on the farm and paid the fuel oil and utility bills until October, 2004. There was no written lease and Allen paid no rent. The deed to the Home Farm was transferred to George on September 15, 1999. (Exhibits A & B). In February, 2003, Allen fell outside the house into a snow bank and was hospitalized. After he was discharged from the hospital, Allen went to live with his nephew Richard, George's son. Allen continued to pay the fuel and utility bills on the house until October 2004.
On or about October 23, 2004, Allen and Richard went to the house on Jacksonville Road to retrieve Allen's personal property. (Exhibit G). George refused them access.
On November 4, 2004, George went to Richard's house with a notary and Allen signed a Power of Attorney to George. That same day based upon the power of attorney George purported to sell to himself and four other individuals (Jerry. Michael, Dale and David ) Allen's personal property, tools and equipment. (Exhibits 1, 2,7,8, and 9). On December 14, 2004, George, again using the power of attorney, went to the Cornell Federal Credit Union and withdrew from Allen's accounts in the form of two checks payable to George, the sums of $7,416.69 and $20,879.11. (Exhibit L). According to George's testimony, he intended to invest this money for Allen at a higher interest rate, but this was never done. The checks were never cashed and George still has them. On December 15, 2005, Allen revoked George's power of attorney and executed a new one in favor of his niece, Louise.
On or about December 22, 2004, Richard brought a proceeding in Tompkins County Family Court seeking an Order of Protection on behalf of himself and Allen against George. (Exhibits C, D and E). A temporary order of protection was granted January 6, 2005. (Tompkins [*5]County Family Court Docket No. 0-1812-04).
George claims he paid $4,500 to the Shaw law firm, Jevon Garrett, Esq., of counsel, to represent Allen in this proceeding. Jevon Garrett testified in this proceeding that he represented George and never even met Allen. In the Family Court proceeding, Mr. Garrett stated that he appeared for George. (Exhibits C, D and E). Garrett also testified he did not appear for George as Power of Attorney for Allen
On or about March 16, 2005, George commenced a small claims proceeding against Allen in Ithaca City Court seeking reimbursement for fuel oil at the house in the amount of $1,492.63. Ithaca City Court, Docket # CO5-21448. The fuel oil bills were for periods after Allen stopped paying the bills in October, 2004 and after George refused him access to retrieve his personal property. City Court, in a decision dated July 20, 2005, found there was no written lease between the parties so Allen was a "periodic tenant" and that George by refusing Allen access to remove his belongings "breached any agreement between the parties." The Court held that fuel oil bills incurred after October, 2004 were George's responsibility and dismissed the claim.
This proceeding for appointment of a guardian for Allen, for a TRO against George and, by amendment of the pleadings to discover and turn over Allen's property claimed to be withheld by George, was begun by Petition dated June 21, 2005, and Order to Show Cause signed by the Court on July 7, 2005.
Taking George's counterclaims first all three alleged offsets must be denied. There was no written lease, rather both George and Allen lived upon and worked the farm which had originally belonged to their parents. Allen lived in one house on the farm and paid the fuel oil and utility bills. As found by Judge Rossiter in the Ithaca City Court proceeding "If the parties had an agreement regarding Allen's...occupancy of the premises on Jacksonville Road, it was that he paid no rent, but paid for his fuel and electric bills." At one point in his testimony George stated "I didn't expect him to pay. He's my brother. There was no contract. We're brothers to stay on Home Farm and keep it going." Even if we assume arguendo there was any such agreement, George's claim must be barred by laches. George testified he never filed a claim against Allen for back rent or damage to the house. The claim for rent was never even asserted for over 30 years until the commencement of this action. Eastern Shopping Centers v Trenholm, 33 AD2d 930 (3d Dept. 1970). See Paragraph 14 of the Answer. Thus George's claim for rent must be denied in its entirety since there never was an agreement to pay rent.
George's claim for damages to the property caused by Allen must also be denied. First, since there is no written lease, there is no contractual agreement for Allen to be responsible for damages, especially since George testified he did not expect Allen to pay for occupying the house on the farm or for repairs.
Second, there are substantial problems regarding the testimony as to the amount of damages. In this regard, respondent called James, a contractor, and his written estimate was introduced into evidence (Exhibit 10). The estimate includes amounts for replacing carpet and furniture allegedly destroyed by Allen's cats. However, James admitted his wife got the costs for these items out of a catalog. Since the wife did not testify, her values for the furniture and carpet are hearsay. An expert, such as James, may not rely upon the hearsay report of another person who is not a witness at trial and subject to cross examination. Flamio v State of New York 132 [*6]AD2d 594 (2d Dept. 1987). As a result, the estimates of the cost to replace the carpet and furniture must be disregarded. The court also notes from the testimony that the carpet was originally installed by the parties' mother, which must have been before her death in 1973. Reasonable wear and tear would have reduced the value of a 30 year old carpet to practically nothing. James also testified that George had been his friend for 35 years. On cross examination he admitted he might cut his friend a deal on the repair costs. This casts doubt on the accuracy of all his cost estimates, since he was admitting he would give his friend a discount of an unknown amount. George has not carried his burden of proof to establish the amount of the damage and the cost of repair.
Finally, "the general rule is that acceptance of rent with knowledge of conduct violative of a lease constitutes a waiver by the landlord of the default..." State Farm v Firmstone, 9 AD3d 812 (3d Dept. 2004); Malloy v Club Marakesh 71 AD2d 614 (2d Dept. 1979). In this case, there was no lease nor any rent, but George did accept Allen's continued payment of fuel oil and utility costs in lieu of rent, even after Allen vacated the premises. George testified he noticed the damage the last winter Allen lived in the house, which would be the winter of 2002-3. But he also testified he had been seeing the damage for "quite a few years". Thus George knew of the damage for several years, yet allowed Allen to continue to occupy the house and accepted Allen's payments for fuel oil and utilities in lieu of rent. All, as George testified, because "he's my brother". Under the general rule cited above, George must be deemed to have waived any claim against Allen for damages to the house.
The claim that George paid Jevon Garrett, Esq. to represent Allen in Family Court is refuted by Garrett's own testimony in this court. Garrett also stated to the Judge in Family Court that he represented George. (Exhibit E). The claim for reimbursement of $4,500 for legal services is denied.
Regarding the two checks for $7,419.69 and $20,879.11. George has admitted that he withdrew the money using the Power of Attorney from Allen. In so doing he was acting as Allen's agent in a fiduciary capacity. It is Allen's money and must be turned over to his guardians. George shall deliver the two uncashed checks to the guardians. MHL §81.43(b).
The personal property that was sold by George on November 4, 2004, was also done under color of the power of attorney. Again he was Allen's agent and the property or the proceeds belong to Allen. Each Bill of Sale contained the following notation "...agreement for items to stay at 3484 Jacksonville premises until Allen passes." Presumably this language was intended to create a life estate in the property for Allen. (Exhibits 1,2,7,8, and 9).
Each of the four buyers were relatives or friends of George: his son-in-law, grandson, and two neighbors for 39 years. One of them, David, testified credibly that George approached him to buy some of Allen's stuff. He never went to the house to look at the items he was purchasing. He also stated that George never intended to let go of the property. The check he gave George has not been cashed, nor has the check he wrote on his father, Dale's account been cashed either. George admitted in his testimony that none of the four checks had been cashed. When asked about the terms of the transaction Wilcox testified George said "if the Court forced him to cash the checks he would turn around and write a check to reimburse me."
The result of this supposed sale was that buyers received nothing, the checks they delivered were not cashed, and if they were cashed, George agreed he would reimburse them. [*7]They were sham transactions. "If the promisor loses nothing and the promisee acquires nothing by an arrangement there is no valid consideration..." New York Jurisprudence, Contracts, §75, p.105; Kinley Corp. v Ancira 859 F. Supp. 652 at 657 (W.D. NY 1994); Manufacturers Hanover Overseas Capital Corp. v Southwire 589 F. Supp. 214 at 219 (S.D. NY 1984) ; Sherman v Hallmark 181 Misc 2d 889 (Civil Court, New York Co. 1999). The buyers effectively paid nothing and received nothing. There was a failure of consideration and the buyers are not bona fide purchasers. The transactions for the sale of Allen's personal property are invalid and the property still belongs to him. George is directed to deliver Allen's personal property listed on Exhibit G to Allen and/or his guardians. MHL §81.43 (b). In order to accomplish this, the guardians shall arrange with George or his attorney a convenient time to enter upon the property at 3484 Jacksonville Road to remove any and all of Allen's property listed on Exhibit G.
In Paragraph 14 of the Answer and also in his testimony, George asserted that he had a right to take the actions he did because he was named as Executor and beneficiary in Allen's will drawn in 2000. This is clearly erroneous. It is black letter law that no one has any rights under a will until the death of the testator and then only after the will is admitted to probate. SCPA Article 14. An executor has no power until letters testamentary are issued by the Surrogate. SCPA §1408 and 1412; EPTL §11-1.1.
It is therefore
ORDERED that the counterclaims of George are denied in their entirety; and it is further
ORDERED that George shall deliver the two checks in the amount of $7,419.69 and $20,879,11 to Richard and Louise, as guardians of Allen; and it is further
ORDERED that George shall deliver the personal property of Allen listed on Exhibit G in this proceeding to Allen and/or Richard and Louise, as guardians of Allen, by permitting them to enter upon the property at 3484 Jacksonville Road, Trumansburg, NY and remove any or all of said items listed on Exhibit G no later than 30 days from the date hereof, and it is further
ORDERED that upon delivery of said checks and personal property the Temporary Restraining Order contained in this Court's Order of September 14, 2005 is terminated.
Dated: November 17, 2005________________________________________
Eugene E. Peckham
Acting Supreme Court Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
