Nostro v Dafni Holdings, LLC

[*1] Nostro v Dafni Holdings, LLC 2009 NY Slip Op 50980(U) [23 Misc 3d 1128(A)] Decided on May 19, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 19, 2009
Supreme Court, Kings County

Mary Nostro, by and Through Her Guardian Carmine Gargano, Plaintiff,

against

Dafni Holdings, LLC and Nickolaos Leornardos, Defendants.



4060/08

Francois A. Rivera, J.

Defendants move by order to show cause, dated November 18, 2008, and pursuant to CPLR 1201, et seq. for an order removing Carmine Gargano (hereinafter Gargano) as the guardian for the person and property of Mary Nostro (hereinafter Nostro or IP) and appointing a guardian ad litem to prosecute the instant action. Plaintiff opposes the order to show cause.

BACKGROUND

The following facts are undisputed. On or about February 5, 2007, plaintiff and defendants entered into a contract for the sale of Nostro's real property located at 247 84th Street, Brooklyn, New York. On or about June 14, 2007, Nostro executed a last will and testament naming Gargano as the sole beneficiary of her estate. On September 6, 2007, a request for judicial intervention was filed with the Kings County Clerk's office under index number 10025/2007 commencing a proceeding to appoint a guardian for the person and property of Mary Nostro (hereinafter the guardianship proceeding). On or about February 6, 2008, Gargano commenced the instant action to void the aforementioned contract of sale. By order of the Supreme Court, Kings County (J. Ambrosio) dated March 13, 2008, in the guardianship proceeding, Gargano and his wife were appointed as co-guardians of the person and property of Nostro.

MOTION PAPERS

Defendants motion papers consists of an attorney's affirmation and two exhibits. Exhibit A is a copy of the plaintiff's summons and complaint of the instant action. Exhibit B is a copy of the report of a court evaluator issued pursuant to 81.09(c)(5) of the Mental Hygiene Law in connection with the guardianship proceeding..

Plaintiff submitted an attorney's affirmation and three exhibits in opposition. Exhibit A is a copy of the plaintiff's summons and complaint. Exhibit B is order of the Supreme Court, Kings County (J. Ambrosio) dated March 13, 2008, appointing Gargano and his wife as co-[*2]guardian of the person and property of Nostro in the guardianship proceeding. Exhibit C is a copy of transcripts of a proceeding by Justice Leventhal, Supreme Court, Kings County, conducted on dated November 11, 2008 in the guardianship proceeding .

Defendants' reply consists of an attorney's affirmation.

APPLICABLE LAW

CPLR Rule 1201 provides in pertinent part as follows: Appointment of guardian ad item. (a) By whom motion made. The court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of:

1. an infant party if he is more than fourteen years of age; or

2. a relative, friend or a guardian, committee of the property, or conservator; or 3. any other party to the action if a motion has not been made under paragraph one or two within ten days after completion of service.

Mental Hygiene Law § 81.35 pertains to removal of a guardian and provides in pertinent part as follow:

Upon motion, the court appointing a guardian may remove such guardian when theguardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just. Notice of motion shall be served on the guardian and persons entitled to receive notice pursuant to paragraph three of subdivision (c) of section 81.16 of this article. The motion may be made by the person examining initial and annual reports pursuant to section 81.32 of this article, or by any person entitled to commence a proceeding under this article, including the incapacitated person.

Mental Hygiene Law § 81.06 provides in pertinent part who may commence a proceeding. (a) A proceeding under this article shall be commenced by the filing of the petition with the court by: 1. the person alleged to be incapacitated; 2. a presumptive distributee of the person alleged to be incapacitated, as that term is defined in subdivision forty-two of section one hundred three of the surrogate's court procedure act; 3. an executor or administrator of an estate when the alleged incapacitated person is or may be the beneficiary of that estate; 4. a trustee of a trust when the alleged incapacitated person is or may be the grantor or a beneficiary of that trust; 5. the person with whom the person alleged to be incapacitated resides; 6. a person otherwise concerned with the welfare of the person alleged to be incapacitated. For purposes of this section a person otherwise concerned with the welfare of the person alleged to be incapacitated may include a corporation, or a public agency, including the department of social services in the county where the person alleged to be incapacitated resides regardless of whether the person alleged to be incapacitated is a recipient of public assistance; 7. the chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident.[*3]

LAW AND APPLICATION

Defendants bring this order to show cause to remove Gargano as the guardian of Nostro and appointing a guardian ad litem to prosecute the instant complaint because Gargano is the sole beneficiary in Nostro's last will and testament. Defendants contend that Gargano is motivated by self interest and not Nostro's interest in the prosecution of the plaintiff's complaint because he is seeking to increase her estate for his eventual benefit as the sole beneficiary. Defendants further contend that the IP's funds being used to prosecute the complaint is a waste and a depletion of the IP's present resources that should be used for her needs. In support of the motion, defendants rely exclusively on the report of the court evaluator utilized in the IP's guardianship proceeding. The court evaluator raised the same potential conflict of interest alleged by the defendants. The evaluator also raised the concern that the sale of the IP's home may have been made under circumstances of undue influence and that a guardian of the property may be required to pursue a turnover proceeding to void the sale.

Plaintiff contends that the relief sought by the defendants must be pursued through a proceeding under the Mental Hygiene Laws since it involves the removal or modification of the power of a court appointed guardian. Plaintiff also contends that this claim of conflict has already been considered and rejected by the court which appointed the guardian in the first place. Plaintiff's contentions have merit.

A proceeding to remove or modify the powers of a court appointed guardian must be brought under Article 81 of the Mental Hygiene Law (MHL) by a party authorized to commence a proceeding under the Article. MHL §81.06 sets forth who may commence a proceeding. At least one appellate court has held that an adverse party in a litigation may not bring such a proceeding (see Application of Usdin, 204 AD2d 64 [1st Dept 1994]).

Defendants' moving papers state, inter alia, that they seek removal of Gargano as guardian of Nostro. In reply to plaintiff's opposition papers defendants clarified their position stating that they do not seeking removal of Gargano as guardian of Nostro pursuant to Article 81 of the Mental Hygiene Law but rather seek solely the appointment of a guardian ad litem pursuant to CPLR 1201, et seq. to prosecute the instant action. Defendants would have Gargano remain as guardian of Nostro's person and property while the court appoints someone else as guardian ad litem to prosecute this case alone. The defendants rely on CPLR §1201 to provide standing for the motion and rely on the allegation of conflict to provide substantive support for the motion.

Unlike Mental Hygiene Law Article 81.35, which would preclude an adversary from making a motion to remove or modify a guardian's authority, CPLR §§1201 and 1202 has no such impediment. An adversary may move a trial court for an order appointing a guardian ad litem in the matter before it. There is, therefore, no procedural impediment for this court to consider the motion.

If the guardian's pecuniary interest is in conflict with the IP's pecuniary interest, then pursuant to CPLR §1201, a guardian ad litem should be appointed to prosecute this action (see Dorsainvil v Parker, 14 Misc 3d 397 [Kings County 2006]). There is nothing about the prosecution of the instant action which can be said to adversely effect the pecuniary interest of the guardian. In other words, the guardian's income and assets are not and cannot be placed at risk by pursuing the litigation on behalf of his ward. It is noted that the March 13, 2008 Supreme Court order appointing Gargano as guardian also specifically gave him authority to prosecute the [*4]instant action and to incur reasonable legal expenses subject to court approval The appointing court already heard, considered and rejected the exact claim of conflict raised by the defendants in the instant motion. This court finds further, that there are no new facts or evidence presented that would warrant the appointment of a guardian ad litem to prosecute the instant action.

Furthermore, there is no showing that the pursuit of the lawsuit is against the IP's interest. In fact, the observation of the court evaluator seem to suggest the contrary and indeed suggest that the commencement of the very lawsuit in question was probably appropriate and to be expected. While it may be possible that Gargano's future pecuniary interest, as the sole heir of Ms. Nostro, may have been a motive for starting the action, it is equally possible that Gargano, as guardian to Nostro, is pursuing the action to protect Nostro's interest as the court appointed guardian should do. The fact that Mr. Gargano may benefit one day in the future should the plaintiff prevail in this action, does not establish a conflict of interest. The motion is, therefore, denied.

The foregoing constitutes the decision and order of this court.

________________________

J.S.C.