Matter of Jane S.
Annotate this CaseDecided on August 2, 2006
Supreme Court, Otsego County
In the Matter of the Application of MEL S., Petitioner Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of JANE S., an Incapacitated Person
L-xxx
James E. Konstanty, Esq.
Attorney for Mel S.
252 Main Street
Oneonta, NY 13820
Carol Malz, Esq.
Attorney for Jane S.
554 Main Street
Oneonta, NY 13820
Dolores G. Fogarty, Esq.
Guardian of the property
183 Main Street, #1, PO Box 727
Unadilla, NY 13849
Eugene E. Peckham, J.
In this Article 81 proceeding Mel S. (hereafter Mel) was originally appointed as conservator for her mother Jane S. (hereafter Jane) in Virginia. Subsequently, Mel moved to New York with her family and transferred her mother to New York. Mel then petitioned to be appointed as guardian of her mother in New York. Carol Malz, Esq. was appointed as attorney for Jane by this Court. Due to questions about the accounting Mel filed in Virginia she was directed to file an accounting in New York. That accounting revealed that Mel had made loans to herself from her mother's assets without court authorization, which is an act of self dealing. SCPA §2107; Matter of Rothko 56 AD2d 499 aff'd 43 NY2d 305 (1977); Matter of Etoll 101 [*2]AD2d 935 (3d Dept. 1984).
Jane was found by the Court to be incapacitated and as a result a neutral attorney, Dolores Fogarty, Esq. was appointed by this Court as guardian of the property of Jane and Mel was appointed guardian of the person. Mel has reimbursed her mother's guardianship account the sum of $60,000.00 which she alleges exceeds the loans she took in the amount of $58,326.36. (Account, Schedule D). The order appointing guardians, dated November 28, 2005, specifically provided in regard to such repayment "nor shall it be conclusive that such payment is the correct amount for the repayment of any such loans." Objections to the Account have been filed by Ms. Malz as attorney for Jane.
The matter now before the court is a motion for summary judgment and/or dismissing all objections to the Account filed on behalf of Mel. The guardian of the property joins in the motion. Ms. Malz has filed a response to the motion in her capacity as attorney for the incapacitated person.
"To grant summary judgment, it must clearly appear that no triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues." Wanger v Zeh 45 Misc 2d 93 (Sup. Ct. Albany Co. 1965) aff'd 26 AD2d 729 (3d Dept. 1966). If issues of fact are found then summary judgment must be denied. Zuckerman v City of New York 49 NY2d 557 (1980).
The first major issue raised by the objections relates to work performed to make handicapped accessible the residence in Oneonta, NY owned by Mel and her husband. The work was paid for out of Jane's assets and was allegedly for Jane's benefit.
Attached to the moving papers as Exhibit E is a copy of a proposal by Terbush Builders to perform the work for handicap accessibility in the amount of $59,011.25. Mel alleges on p.6 of her affidavit in support of the motion that the actual cost of the renovations to make the home handicapped accessible was $19,700.00. Attached to the responding papers as Exhibit A is a statement from a CPA addressed to Ms. Fogarty indicating the cost of the renovations was $54,788.08. Exhibit C to the responding papers is a notarized report by Harvey Truesdell, a building contractor in which he concludes "It is my finding that little work was done with the goal of making the house handicap accessible. The majority of the renovations were simply to make the house more comfortable for the family." Clearly there are disputed facts as to the cost and value of the work to make the home handicap accessible.
There is also a dispute as to whether the handicap accessibility work was reasonable or necessary for Jane's benefit. Shortly after moving to Oneonta Jane was hospitalized and then discharged to a nursing home on May 5, 2004. Both parties have submitted copies of medical records (Movant Ex. A and Respondent Exhibit A), but no affidavits or other sworn testimony of doctors, nurses or other medical personnel. The last medical information submitted is a Discharge Summary by Dr. Jennifer Rule, dated May 5, 2004, which states Jane's diagnoses as "1) Alzheimer's dementia, 2) History of bipolar, 3) History of pulmonary embolism, 4) Hypertension, 5) Pancreatic mass, 6) Thigh hematoma." She was prescribed six medications, including anti-psychotics, and had a feeding tube in place in her stomach. This is sufficient to raise a question of fact as to whether Jane would be able at that time to leave the nursing home to visit Mel's home even if it was made handicap accessible. No subsequent medical or nursing home records or affidavits or testimony from qualified medical personnel have been submitted. The renovations were apparently begun shortly thereafter as the first bills for the work were paid [*3]in August 2004 (Respondent Ex. A) and so there is a question of fact as to whether it was reasonable or necessary to charge the cost of handicap accessibility to Jane's assets.
The second major issue relates to the purchase from Jane's assets of a handicap van, La-z-boy sleeper, mattress and box spring allegedly for Jane's use. For the same reasons set forth above regarding Jane's medical condition it is unclear whether she could ever use these items. Thus there also remains a question of fact as to whether it was reasonable or necessary to charge these items to Jane's account.
Last is the question of the loans taken by Mel without authorization. Objectant has submitted no evidence by affidavit or otherwise to challenge the computation of the loan amounts set forth at Exhibit D of the Account. Thus the loans made by Mel to herself from her mother's assets are determined to be $58,326.36 as set forth on Schedule D of the account. However, there remains for decision the question of charging interest (Respondent Exhibit F) on these loans and a surcharge to Mel for self dealing. See Matter of Bausch 280 A.D.482 (4th Dept. 1952).
Objectant has submitted no evidence to substantiate objections 6,7,9 and 10 and they are dismissed. As set forth above there remain triable issues of fact as to the remaining objections #1,2,3,4,5 and 8 and summary judgment is denied as to those issues.
This decision constitutes the order of the Court.
Dated: August 2, 2006____________________________________
Acting Supreme Court Justice
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