Matter of Caryl S.S. (Valerie L.S.)
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[*1]
Matter of Caryl S.S. (Valerie L.S.)
2014 NY Slip Op 51697(U)
Decided on November 25, 2014
Supreme Court, Bronx County
Aarons, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2014
Supreme Court, Bronx County
In the Matter of the Application of Caryl S.S., Petitioner, For The Appointment of A Guardian For the Person and/or Property of
against
Valerie L.S., An Alleged Incapacitated Person, Respondent.
91809/14
Bethany A. Ralph, Esq., Original Attorney for the Petitioner Caryl S. S.; Downey, Haab & Murphy, PLLC by Hilarie L. Thomas, Esq., Subsequent Attorney for the Petitioner Caryl S. S.;Lorraine Coyle, Esq., Attorney for the AIP; Mark Goldstein, Esq., Court Evaluator; Drinker, Biddle and Reath LLP, by Peter J. Strauss, Esq., Attorney for Kenneth S.
Sharon A.M. Aarons, J.
Prior to the return date of the petition, the AIP allegedly retained Lorraine Coyle, Esq., as her counsel in this matter. Ms. Coyle called chambers on Tuesday, November 18, informing the Court that she would be moving to dismiss the petition, and requesting an adjournment. The Court's staff advised her that the case would not be adjourned, and that the AIP should be present in Court on November 21. Ms. Coyle was instructed to make her motion to dismiss by Order to Show Cause, which would be made returnable on the return date of the petition.
The Order to Show Cause filed by Ms. Coyle was supported by an affidavit [FN1] of the AIP dated November 19, 2014. In the affidavit, the AIP averred that Ms. Coyle visited the AIP for the first time on November 13, 2014. The AIP recited that Ms. Coyle asked her a number of questions, such as "What is your date of birth? What is today's date?," and that she answered all of these questions correctly. The affidavit further recited that the AIP did not want a guardian appointed, and that she was happy with the care provided by her son, in whose favor she had executed both a health care proxy and a power of attorney.
The AIP's affidavit further averred that service of the petition on herself was invalid, as she asserted that service had been made on the AIP's aide, and argued that the petition failed to state a cause of action, as it failed to sufficiently allege lack of capacity. The AIP requested that petitioner's counsel, Bethany Ralph, Esq., be disqualified due to a conflict of interest, in that Ms. Ralph had previously represented the AIP in preparing a deed in August, 2013, which transferring the AIP's home at 4658 Grosvenor Avenue, Bronx, New York, from the AIP's sole ownership to the petitioner as joint tenant. Moreover, she alleged that Ms. Ralph had subsequently prepared a deed in February, 2014, which transferred the AIP's remaining interest in 4658 Grosvenor Avenue to the petitioner, while reserving a life estate to the AIP, and that Ms. Ralph prepared a will for the AIP dated October 25, 2013.
The AIP's affidavit, in addition, stated that when the Court Evaluator, Mr. Mark Goldstein, arrived to interview the AIP on Friday, November 14, 2014, the AIP had instructed her aide not to let him in. The Court Evaluator called the police, who assisted him in gaining access. The AIP swore that she refused to be interviewed by the Court Evaluator in the absence of her attorney, and that, "I will never speak to that man again — ever. I have never had the police at my door and was humiliated when my neighbors rushed over." Lastly, the AIP demanded a jury trial.
The AIP's son also retained counsel on Tuesday, November 18, three days prior to the return date of the petition. His counsel, Drinker, Biddle & Reath, LLP (Drinker, Biddle) called chambers on Wednesday, November 19, two days prior to the scheduled hearing date, to request an adjournment, and was similarly advised by the Court's staff that the matter would not be adjourned. Mr. Strauss, of that office, was advised by chambers to notify all sides of Drinker, Biddle's appearance, and the fact that they would be requesting an adjournment. A facsimile transmission to that effect was sent on November 19, 2014, stating that Drinker, Biddle was retained on November 18, and would be requesting an adjournment of the proceeding when the matter was called on November 21.
On the return date of the petition, the AIP was not present in Court. Ms. Coyle explained that Mr. Strauss of Drinker, Biddle & Reath, LLP, had notified Ms. Coyle that the appearance would be for a "status conference" only, and that the presence of the AIP was not necessary. Tellingly, the November 19 facsimile sent by Drinker, Biddle, a copy of which was received in chambers, did not state the erroneous belief that the AIP's appearance was waived, even though such an important matter would be expected to be set forth in a confirmatory notification. Admittedly, [*2]Ms. Coyle stated that she did not call the Court to inquire as to whether the AIP should be present, even though she had been specifically directed to bring her client to Court on November 21. Ms. Coyle stated that she knew Mr. Straus well, and had no basis to question any of his representations.
The Court determined that Ms. Ralph would be disqualified due to an inherent conflict of interest. (See Matter of Lichtenstein,171 Misc 2d 29, 652 N.Y.S.2d 682 [Sup. Ct., Bronx County 1996] [disqualifying petitioner's counsel, who had previously prepared the AIP's will, and assisted in placing her in a nursing home].) Nevertheless, the Court also stated that it was constrained to conduct a home visit to ascertain the status and condition of the AIP, and to determine if in fact the AIP had retained Ms. Coyle as her counsel.
The proceeding was re-convened at the home of the AIP, with all parties present in Court now present in the AIP's home. Upon beginning the hearing, the AIP [FN2] immediately stated, "So do you all have questions? I don't know why. I have answers. Who starts?" The Court inquired as follows:
THE COURT: You could not come to the court this
morning, so the court came to you. Usually my courtroom is
very big, so there is enough seat for everyone. And since
you can't come downstairs in your own house, we have come
upstairs.
MRS. S.: I do go down the steps one at a
time, but I am practicing.
THE COURT: Okay. So for your convenience,
that's why I am here.
MRS. S.: That's right.
THE COURT: Everything is for your convenience
and for your comfort. Do you understand?
MRS. S.: Yes.
THE COURT: My name is Justice Aarons, and the
only reason why I am here is out of concern for you and
what is in your best interest, your safety, and to protect
your rights. That is why I came to see you.
MRS. S.: Good.
THE COURT: Now, I am here to find out, did
anyone speak to you about the proceeding that was filed,
the petition that was filed?
MRS. S.: No.
THE COURT: No one did?
MRS. S.: No.
From the foregoing inquiry, it became clear at the commencement of the hearing that the AIP had no recollection of discussing the filing of the facts of the present case with her retained counsel. Further inquiry by the Court immediately established, from the commencement of the hearing, that the AIP had very little comprehension that she had retained counsel.
THE COURT: Did you hire an attorney?
MRS. S.: Yes.
THE COURT: Why did you hire an attorney?
MRS. S.: We needed her facts.
THE COURT: You needed her facts?
MRS. S.: Yes.
THE COURT: Facts about what?
MRS. S.: About the case.
THE COURT: Who is "we" that need the facts about
the case?
MRS. S.: Well, my husband is the main leader
in this deal, and he takes care of things.
THE COURT: And where is your husband right now?
MRS. S.: Teaching.
THE COURT: Where does he teach?
MRS. S.: Oh, no. I don't know. It's up in
New York State.
THE COURT: And who is it that you hired?
MRS. S.: Who what?
THE COURT: Who did you hire?
MRS. S.: I didn't hire anybody.
THE COURT: Did you hire an attorney?
MRS. S.: Oh, yes, I hired an attorney.
THE COURT: What is the attorney's name?
MRS. S.: Right here.
THE COURT: Do you know her name?
MRS. S.: Sure, I know her name.
THE COURT: What is her name?
MRS. S.: That I forget, the last name.
* * *
MRS. S.: Bethany. Not Bethany, Ethany.
THE COURT: Ethany is her first name. Okay.
When did you first speak to Ethany?
MRS. S. [to Ms. Coyle]: When did I first speak to you?
While the AIP referred to her husband as "the main leader in this deal," it is undisputed that he died in 2012. The AIP later recalled during the hearing that he had died, but she incorrectly [*3]believed that the year was 2013. She clearly did not recall Ms. Coyle's name, or when she first met her or spoke with her, and she possibly confused her with her prior counsel, Ms. Ralph. Further, she confused her son with her late husband, as her son is a teacher. She later corrected herself, and indicated that it was her son, not her husband, who hired the attorney.
The hearing proceeded as follows:
THE COURT: When I asked did you hire an
attorney, you looked to your left at the woman that's
seated next to the reporter. Is that the attorney you
hired?
MRS. S.: Yes.
THE COURT: How did you go about hiring her?
MRS. S.: My son got in touch with the works
and hired her.
THE COURT: What is "the works"? What do you
mean "the works"?
MRS. S.: "The works" is when one does this,
and that, and this, and this. And so he wants to be the
one that does it.
THE COURT: So he hired her for you?
MRS. S.: Yes, he hired her for me.
THE COURT: When was the first time you had a
discussion with the lady that's seated next to the reporter
about doing something for you?
MRS. S.: I don't remember.
THE COURT: Was it a couple days ago, was it
couple of weeks ago?
MRS. S.: No, no. A few weeks ago.
THE COURT: A few weeks ago?
MRS. S.: Yes.
THE COURT: Do you know when you actually met
with her, did you go see her at her office or did she come
see you at your home?
MRS. S.: She came to see me.
THE COURT: And did your son come with her?
MRS. S.: Yes.
THE COURT: So he brought the attorney to you?
MRS. S.: Mm-hmm.
THE COURT: Before your son brought the attorney
to you, had you met this attorney before?
MRS. S.: No.
THE COURT: You have never seen her before he
brought her to you?
MRS. S.: No.
The AIP testified, and it is undisputed, that she had no prior relationship with Ms. Coyle in any way. While the AIP believed that Ms. Coyle had come to her home "a few weeks ago," Ms. Coyle has represented that in fact she first met the AIP on November 13, which was eight days prior to the Court's home visit. She clearly did not recall discussing the case with her attorney, other than it was her son who had brought her.
The AIP specifically stated that she did not have other attorneys in the past. She did not identify or even mention Ms. Ralph, who was present a few feet from her, even though she had effectuated transfers of the AIP's realty, prepared her will dated October 25, 2013, and as recently as February, 2014, prepared a deed which transferred the AIP's remaining interest in 4658 Grosvenor Avenue to the petitioner: As indicated in the transcript:
THE COURT: Have you had other attorneys that
have assisted you before besides the lady that's seated
here?
MRS. S.: No.
THE COURT: Did you ever create any documents,
something like a will or anything like that that you had
any assistance with?
MRS. S.: My husband and I started a will,
but we didn't get to sign it because he died.
THE COURT: And who assisted you with that? Do
you remember who was the attorney that helped you with
that?
MRS. S.: I don't think so, no.
THE COURT: It was just you and your husband?
MRS. S.: Right.
THE COURT: Now, you just told me your husband
died, right?
MRS. S.: Yes.
THE COURT: But, earlier you mentioned that your
husband is somewhere teaching?
MRS. S.: No, no. That was my son that was
teaching.
THE COURT: When did your husband die?
MRS. S.: In October.
THE COURT: Of when?
MRS. S.: 13.
Further inquiry demonstrated that the AIP did not recall any of the alleged conversations with Ms. Coyle which preceded the Court's inquiry. She appeared to confuse the guardianship proceeding with the execution of a will involving her deceased husband, which could explain the AIP's reference [*4]to "what should be included" (i.e., what should be included in a will):
THE COURT: Now, this attorney that's seated
here, did you speak to her about the proceeding, what's
going on?
MRS. S.: Well, generally, yes. What should
be included and what should not be included, things like
that.
THE COURT: What do you mean "what should be
included and what shouldn't be included"?
MRS. S.: Well, for instance, the car, it
should be included.
THE COURT: In what?
MRS. S.: In his writing.
THE COURT: Whose writing?
MRS. S.: My husband's. I don't know how you
mean.
THE COURT: This attorney that's seated next to
you, did you discuss with her about the proceeding, this
proceeding, why what's going on in the court?
MRS. S.: After my husband died, yes.
THE COURT: Yes?
MRS. S.: Oh. Yes, yes, quite a while after
because it was a shock.
THE COURT: What was a shock?
MRS. S.: The death.
The AIP also did not understand the nature and object of the present proceeding:
THE COURT: Have you heard the word
"guardianship" before?
MRS. S.: Guardianship? No, not really.
THE COURT: Do you know what a guardianship is?
MRS. S.: I do know what a guardianship is,
yes.
THE COURT: What is it?
MRS. S.: It's the person who helps fulfill
the need of the person who wrote the deed.
THE COURT: Who wrote the deed. Okay.
The attorney that's seated here, did she explain
to you about the guardianship?
MRS. S.: I don't think so.
During the proceeding, the AIP noticed papers on her bed — a copy of the Order to Show Cause and her own affidavit. The AIP had no recollection of signing the affidavit, even though it was executed only a two days previously.
MRS. S.: .... Are those the papers that my son left for me?
THE COURT: Your son left some papers for you?
MRS. S.: Did he leave them at the end of the
bed there?
THE COURT: Are those papers that your son left
for you?
MRS. S.: Laid out for me, yes.
THE COURT: Do you know what they are?
MRS. S.: No. I mean they are general, but
THE COURT: May I look at them?
MRS. S.: Sure.
(Document handed to the court.)
THE COURT: Do you know why he left the papers?
MRS. S.: Why he left the papers, he want me
to read them.
THE COURT: What the Court has in its possession
is an order to show cause signed by Judge Salmon, which is
dated November 19 of 2014. And this order to show cause
was filed by Caryl S. S.. That's the movant.
Well, there is two things. The order to show cause signed
by Judge Salmon, but this pertains to
MRS. S.: I don't think it really pertains
to.
THE COURT: I think this is filed by this is
filed by, I would assume, her attorney to dismiss
Mrs. S. to dismiss. These are the papers for the
affidavit, which is what I want to ask you about.
I want to show you something, Mrs. S., and
ask you if you signed this, and when you signed it. Let me
first ask you:
What I am showing her is an affidavit in support
of the order to show cause. Do you remember signing this
document here (indicating), at the end it has a signature?
MRS. S.: That's the end of the document?
THE COURT: Yes.
MRS. S.: The beginning is
THE COURT: And all these pages, page one, two,
three, four, five, all of this is what you have said. It
was typed up. And this is what you are saying to me. Do
you remember signing this document?
MRS. S.: No, I don't remember signing this
document.
Further, much was made in the AIP's affidavit of the Court Evaluator's entry into the home with the assistance of police officers, and the distress it allegedly caused the AIP. Contrary those allegations, the AIP in fact had no recollection of meeting the Court Evaluator one week previously, and merely stated that he looked familiar:
THE COURT: Do you at all remember let me ask
you another question then.
There is a gentleman in the corner over there.
Actually, his name is Mr. Goldstein
MRS. S.: Oh, Goldstein.
THE COURT: To you remember does he look
familiar to you?
MRS. S.: Yes, he looks familiar to me.
THE COURT: Did he ever come to your house to
visit you?
MRS. S.: No.
THE COURT: He has never been here before?
MRS. S.: I don't think so.
THE COURT: Did you ever have a conversation with
him?
MRS. S.: Oh, boy. I don't know.
The AIP gave telling testimony as to the influence of her son on her decision-making process. She testified:
THE COURT: Before you make decisions, is there
anyone that you speak to before you do anything?
MRS. S.: Before I do anything?
TE COURT: Before you speak to people, before
you sign any documents, is there any person that you always
speak to first before you do anything, before you speak to
anyone or before you sign any documents?
MRS. S.: I am not aware of it.
THE COURT: What role does your son or your
daughter play in your life?
MRS. S.: My son plays the money part of the
deed. He signs checks and so forth. And my daughter
doesn't do very much. She maybe brings me a deck of cards
or something like that.
Contrary to the contents of her affidavit executed two days earlier, in which the AIP stated in reference to the Court Evaluator that that, "I will never speak to that man again — ever," the AIP willingly and unhesitantly agreed to speak with the Court Evaluator:
THE COURT: Also, part of my job as a Judge is to
find out what's going on, and how you are doing. I can't
always go outside into the community. Do you understand?
MRS. S.: Yes.
THE COURT: I made an exception and came here
today. But, this gentleman that's seated over here, his
name is Mr. Goldstein, he works on behalf of the Court. He
is called a court evaluator. So I send him out, and I said
I can't go to everybody's house or wherever they live,
please go out there and speak to that person. That's the
subject of this proceeding. You understand me?
MRS. S.: Right.
THE COURT: So, I would like Mr. Goldstein to
speak to you. You don't have to speak to him, if you don't
want to. But for me to do my job he helps me to do my
job. So what I would like, with your permission, is if you
would allow Mr. Goldstein to speak to you.
MRS. S.: [TURNING TO COURT EVALUATOR] Speak.
THE COURT: Not now. So, he has your permission
to speak with you. And if you are up to it, when we all
leave, he would like to speak to you?
MRS. S.: All right. Sure.
THE COURT: Is that okay with you?
MRS. S.: That's okay with me.
Despite the fact that she knew nothing about Ms. Coyle, the AIP desired to keep her as her attorney. She testified:
THE COURT: Now, I mentioned to you that if you
want, I can appoint an attorney for you, someone who has no
interest in your finances or anything like that. I can
appoint an attorney for you. Would you like the Court to
do that?
MRS. S.: I have an attorney.
THE COURT: And who is that?
MRS. S.: Right here (indicating).
THE COURT: What is her name?
MRS. S.: I don't know.
THE COURT: That attorney was brought to you by
your son?
MRS. S.: Yes. Right.
THE COURT: I can appoint an attorney that your
family member do not bring to you, that you can have a
relationship just by yourself.
MRS. S.: I want my relationship with her.
THE COURT: Why her?
MRS. S.: Why her? Why not her.
THE COURT: You told me you don't know anything
about her?
MRS. S.: I do know things about her.
THE COURT: What do you know about her?
MRS. S.: I do know that she is a woman,
and I don't know that much.
THE COURT: You don't know anything about her
other than that she is woman.
MRS. S.: I know a few things.
THE COURT: Tell me what you know about her?
MRS. S.: She is a woman. She is a lawyer.
She goes to court. She says everything that she should say
in her speeches.
THE COURT: Like what?
MRS. S.: Well, like I don't know like
what. I don't know.
THE COURT: If you desire a woman lawyer that
goes to court, I can appoint that too?
MRS. S.: Well, I don't need that.
THE COURT: Because?
MRS. S.: I have a lawyer.
THE COURT: Now, do you want her because that's
who your son brought to you?
MRS. S.: No, no, no.
THE COURT: You didn't get her on your own,
right?
MRS. S.: No, I didn't get her on my own.
THE COURT: Your son brought her to you?
MRS. S.: Right, he brought her to me.
THE COURT: He is the one that found her for you?
MRS. S.: That's right.
THE COURT: You didn't find her on your own?
MRS. S.: No.
THE COURT: Is that why you would like to keep
her?
MRS. S.: Well, that's not why I would like
to keep her, no.
THE COURT: So you have to explain to me why you
want to keep her.
***
Explain to me why you want her?
MRS. S.: Why I want her, she lives near me.
THE COURT: She does. Where does she live?
MRS. S.: I don't know exactly, but it's
somewhere in the neighborhood.
THE COURT: How do you know she lives near you?
MRS. S.: Because I have been told that.
THE COURT: Who told you that?
MRS. S.: I don't know who.
THE COURT: And why else do you want her?
MRS. S.: I thought she was a very thoughtful
person.
Ms. Coyle confirmed on the record, outside of the presence of the AIP, that she was in fact contacted by the AIP's son on November 12 to be the AIP's counsel, and that she first visited her on Tuesday, November 13. She did not have any previous relationship with the AIP, social or professional. She asserted that she had asked her the questions listed in the AIP's affidavit to establish her state of mind, and that she was clear-headed at the time. Ms. Coyle freely admitted that AIP's evident confusion and poor memory of events was a "big surprise," and, "That she was as unclear as she was. I was surprised." Nevertheless, she insisted that it was not unusual for relatives to secure counsel for the AIP, and that the AIP was "competent" and "had capacity" when she retained her. She further indicated that she had been in communication with the son Kenneth S. following her retention as counsel to the AIP. Despite her assertions that the AIP was clear-minded and "had capacity," she felt compelled to ask the AIP's visiting nurse if, in her opinion, the AIP required a guardian to be appointed.
Ms. Coyle additionally confirmed that she lived a block away from the AIP's home, and that she had not known her socially or professionally before meeting her in connection with the present litigation.
MHL 81.10(a) provides, "Any person for whom relief under this article is sought shall have the right to choose and engage legal counsel of the person's choice. In such event, any attorney appointed pursuant to this section shall continue his or her duties until the court has determined that retained counsel has been chosen freely and independently by the alleged incapacitated person." (Emphasis added.) It has been observed that "although an individual possesses no absolute right to [*5]representation by an attorney of his choice, any restriction imposed on that right will be carefully scrutinized. An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association and the Sixth Amendment right to counsel and will not yield unless confronted with some overriding competing public interest." (In re Abrams, 62 NY2d 183, 196, 465 N.E.2d 1, 476 N.Y.S.2d 494 [1984] [Citations omitted].) The Court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person."
In view of the allegations of undue influence and functional limitations in the petition, this Court was constrained to ascertain if, indeed, Ms. Coyle should represent the AIP — especially as the litigants evidently expected the proceeding would continue in the absence of the AIP, and without providing the Court an opportunity to determine whether the AIP choose to have Ms. Coyle represent her. Despite the evident reluctance of the parties and counsel to bring the AIP to Court, MHL § 81.11(c) requires the presence of the AIP at the hearing "so as to permit the court to obtain its own impression of the person's capacity." Moreover, the Court's obligation to safeguard the interest of the AIP must necessarily include ascertaining whether counsel allegedly retained by the AIP, was in fact, "freely and voluntarily" retained.[FN3]
The AIP clearly, based on her statements and the observations of the Court, did not retain Ms. Coyle. Her confusion at the hearing was manifest, as indicated by references to her husband, who is deceased; her short and long-term memory loss; her lack of comprehension as to the purpose of the present proceeding [FN4] and the role of her counsel; and her inability to recall her prior counsel, the name of her present counsel, or the events in this litigation which occurred only days earlier. Ms. Coyle herself conceded that the AIP's demeanor and conduct constituted a "big surprise," and she stated forthrightly in argument in open court that she was "shocked at her [the AIP's] absence of knowing anything." Even more significant was that the AIP had no recollection of the Court Evaluator, despite the hyperbolic accusations in her affidavit as to his alleged extreme conduct.[FN5]
It is troubling that Ms. Coyle, who had no prior relationship with the AIP, was brought into this case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP and her financial affairs, transferring large amounts of property to himself without any authority to do so. While it may not be unusual for an attorney to be contacted or selected by a relative, it is unusual when that relative is a person charged with exerting undue influence, and with using his agency powers improperly for his own gain.[FN6] Moreover, while the focus of the present inquiry is not the AIP's "competence," the Court's findings that the AIP has memory deficits as to crucial matters, and displays evident confusion, further supports the conclusion that she did not act freely and independently, but merely acquiesced in the selection of counsel made by her son, without any real comprehension or understanding of her own interests. Ms. Coyle has not "been chosen freely and independently by the alleged incapacitated person."
The Court made clear during this hearing that the present inquiry does not involve any criticism of the conduct, ability or integrity of Ms. Coyle. The Court stated on the record at the hearing in the AIP's home that, "It's not you as an attorney, per se, it's how you got involved in this case and the allegations that's presented." However, the unusual events which transpired, involving the son's refusal to allow the Court Evaluator to speak with the AIP, combined with the failure to bring the AIP to Court despite a clear direction to do so, certainly warranted that the Court undertake immediate action to determine the relevant facts and circumstances of the AIP's situation.
Accordingly, Ms. Coyle is disqualified from further representation of the AIP.
The Court hereby appoints Lenore Kramer, Esq., as counsel for the AIP.
The parties shall submit, on notice to the AIP's counsel, a proposed budget for the payment [*6]of the AIP's living expenses so that the restraint previously imposed by the Court may be modified to allow the payment of the bills and expenses of the AIP pending determination herein.
The matter is adjourned to December 4, 2014, at 2:00 P.M.
Footnote 1:The affidavit, as detailed herein, contains a mix of factual allegations and legal argument. A person reading the affidavit would incorrectly receive the impression that the person making these recitations had a thorough comprehension of the facts and legal issues presented. As more fully explained below, this is far from the case.
Footnote 2:Ms. Coyle has suggested during argument on November 24, 2014, that the AIP may have been frightened, nervous, or startled by the presence of eleven strangers in her bedroom. To the contrary, the Court observed the AIP to be calm, pleasant, open and smiling. She did not indicate by her behavior or demeanor that she was nervous or distressed in any way, nor did she ever state or suggest that she was. She appeared healthy and composed at all times.
Footnote 3:The Court notes that there is no impediment to the Court's placing the AIP on the witness stand to ascertain the relevant facts. Matter of Heckl, 66 AD3d 1344, 886 N.Y.S.2d 295 (4th Dept. 2009); Matter of Aida C., 44 AD3d 110, 840 N.Y.S.2d 516 (4th Dept. 2007).
Footnote 4:Many of the AIP's statements appeared to reference deeds and wills, suggesting to the Court that her comprehension of the role of counsel was limited to the execution of these instruments.
Footnote 5:The AIP's affidavit in support of her Order to Show Cause indicates that she refused to allow him to interview her in the absence of her counsel. The Court finds more plausible the explanation in the Court Evaluator's report that the Court Evaluator was barred from entering the AIP's home by an aide, who stated that "Ken," the AIP's son, told her not to allow the Court Evaluator to enter the house. In addition, the Court Evaluator stated on the record at the hearing at the AIP's home that her son had stated to him that he did not know who the Court Evaluator was and what the case was about — despite the fact that he had retained an attorney for his mother two days earlier. Further, after the Court Evaluator obtained access to the home, the AIP received a phone call from her son, after which she stated that her son had told her not to communicate with the Court Evaluator. While the AIP may choose not to speak with the Court Evaluator (Matter of Aida C., 44 AD3d at 115-16), her refusal to do so appears to have been the result of her son's influence, and not a reasoned determination or expression of the AIP's own volition — as indicated by her unhesitating willingness to speak with the Court Evaluator when she was questioned by the Court. Nor did it appear to result from a reasoned determination not to speak in the absence of counsel. Moreover, these circumstances appear to suggest that the AIP's son believed that despite bringing Ms. Coyle into the proceeding, he would remain in charge of directing the course of the litigation. Lastly, there was no legal requirement that counsel be present at the interview by the Court Evaluator. Matter of G.G., 4 Misc 3d 1025(A), 798 N.Y.S.2d 343 (Sup. Ct., Kings County, 2004) (denying application to strike the Court Evaluator's report, and for the Court Evaluator to recuse herself, due to the fact that the Court Evaluator met with petitioner and observed her without counsel being present).
Footnote 6:See In re Moulinos, 2009 NY Misc. LEXIS 2412, 241 N.Y.L.J. 60 (Sup. Ct., Queens County 2009) ("A preliminary inquiry by the Court, as to [the AIP'] competency to retain an attorney, indicated that the AIP had obvious memory problems and during the entire hearing it was apparent that she had some dementia and an apparent failure of some of her faculties. It also became apparent that her husband was active in obtaining her attorney and under other circumstances the Court would have disqualified her attorney and appointed independent counsel.")
Decided on November 25, 2014
Supreme Court, Bronx County
In the Matter of the Application of Caryl S.S., Petitioner, For The Appointment of A Guardian For the Person and/or Property of
against
Valerie L.S., An Alleged Incapacitated Person, Respondent.
91809/14
Bethany A. Ralph, Esq., Original Attorney for the Petitioner Caryl S. S.; Downey, Haab & Murphy, PLLC by Hilarie L. Thomas, Esq., Subsequent Attorney for the Petitioner Caryl S. S.;Lorraine Coyle, Esq., Attorney for the AIP; Mark Goldstein, Esq., Court Evaluator; Drinker, Biddle and Reath LLP, by Peter J. Strauss, Esq., Attorney for Kenneth S.
Sharon A.M. Aarons, J.
A petition, returnable November 21, 2014, has been filed for the appointment of a Guardian of the person and property of VALERIE S., an alleged incapacitated person ("AIP"). The petitioner, Caryl S. S. (the petitioner or the AIP's daughter), the AIP's daughter, alleges that the AIP, who is 92 years old, suffered a stroke on January 12, 2014, and that the AIP's son, Kenneth William S. (Mr. S. or the AIP's son), has made questionable transfers of the AIP's property into his own name.
Prior to the return date of the petition, the AIP allegedly retained Lorraine Coyle, Esq., as her counsel in this matter. Ms. Coyle called chambers on Tuesday, November 18, informing the Court that she would be moving to dismiss the petition, and requesting an adjournment. The Court's staff advised her that the case would not be adjourned, and that the AIP should be present in Court on November 21. Ms. Coyle was instructed to make her motion to dismiss by Order to Show Cause, which would be made returnable on the return date of the petition.
The Order to Show Cause filed by Ms. Coyle was supported by an affidavit [FN1] of the AIP dated November 19, 2014. In the affidavit, the AIP averred that Ms. Coyle visited the AIP for the first time on November 13, 2014. The AIP recited that Ms. Coyle asked her a number of questions, such as "What is your date of birth? What is today's date?," and that she answered all of these questions correctly. The affidavit further recited that the AIP did not want a guardian appointed, and that she was happy with the care provided by her son, in whose favor she had executed both a health care proxy and a power of attorney.
The AIP's affidavit further averred that service of the petition on herself was invalid, as she asserted that service had been made on the AIP's aide, and argued that the petition failed to state a cause of action, as it failed to sufficiently allege lack of capacity. The AIP requested that petitioner's counsel, Bethany Ralph, Esq., be disqualified due to a conflict of interest, in that Ms. Ralph had previously represented the AIP in preparing a deed in August, 2013, which transferring the AIP's home at 4658 Grosvenor Avenue, Bronx, New York, from the AIP's sole ownership to the petitioner as joint tenant. Moreover, she alleged that Ms. Ralph had subsequently prepared a deed in February, 2014, which transferred the AIP's remaining interest in 4658 Grosvenor Avenue to the petitioner, while reserving a life estate to the AIP, and that Ms. Ralph prepared a will for the AIP dated October 25, 2013.
The AIP's affidavit, in addition, stated that when the Court Evaluator, Mr. Mark Goldstein, arrived to interview the AIP on Friday, November 14, 2014, the AIP had instructed her aide not to let him in. The Court Evaluator called the police, who assisted him in gaining access. The AIP swore that she refused to be interviewed by the Court Evaluator in the absence of her attorney, and that, "I will never speak to that man again — ever. I have never had the police at my door and was humiliated when my neighbors rushed over." Lastly, the AIP demanded a jury trial.
The AIP's son also retained counsel on Tuesday, November 18, three days prior to the return date of the petition. His counsel, Drinker, Biddle & Reath, LLP (Drinker, Biddle) called chambers on Wednesday, November 19, two days prior to the scheduled hearing date, to request an adjournment, and was similarly advised by the Court's staff that the matter would not be adjourned. Mr. Strauss, of that office, was advised by chambers to notify all sides of Drinker, Biddle's appearance, and the fact that they would be requesting an adjournment. A facsimile transmission to that effect was sent on November 19, 2014, stating that Drinker, Biddle was retained on November 18, and would be requesting an adjournment of the proceeding when the matter was called on November 21.
On the return date of the petition, the AIP was not present in Court. Ms. Coyle explained that Mr. Strauss of Drinker, Biddle & Reath, LLP, had notified Ms. Coyle that the appearance would be for a "status conference" only, and that the presence of the AIP was not necessary. Tellingly, the November 19 facsimile sent by Drinker, Biddle, a copy of which was received in chambers, did not state the erroneous belief that the AIP's appearance was waived, even though such an important matter would be expected to be set forth in a confirmatory notification. Admittedly, [*2]Ms. Coyle stated that she did not call the Court to inquire as to whether the AIP should be present, even though she had been specifically directed to bring her client to Court on November 21. Ms. Coyle stated that she knew Mr. Straus well, and had no basis to question any of his representations.
The Court determined that Ms. Ralph would be disqualified due to an inherent conflict of interest. (See Matter of Lichtenstein,171 Misc 2d 29, 652 N.Y.S.2d 682 [Sup. Ct., Bronx County 1996] [disqualifying petitioner's counsel, who had previously prepared the AIP's will, and assisted in placing her in a nursing home].) Nevertheless, the Court also stated that it was constrained to conduct a home visit to ascertain the status and condition of the AIP, and to determine if in fact the AIP had retained Ms. Coyle as her counsel.
The proceeding was re-convened at the home of the AIP, with all parties present in Court now present in the AIP's home. Upon beginning the hearing, the AIP [FN2] immediately stated, "So do you all have questions? I don't know why. I have answers. Who starts?" The Court inquired as follows:
THE COURT: You could not come to the court this
morning, so the court came to you. Usually my courtroom is
very big, so there is enough seat for everyone. And since
you can't come downstairs in your own house, we have come
upstairs.
MRS. S.: I do go down the steps one at a
time, but I am practicing.
THE COURT: Okay. So for your convenience,
that's why I am here.
MRS. S.: That's right.
THE COURT: Everything is for your convenience
and for your comfort. Do you understand?
MRS. S.: Yes.
THE COURT: My name is Justice Aarons, and the
only reason why I am here is out of concern for you and
what is in your best interest, your safety, and to protect
your rights. That is why I came to see you.
MRS. S.: Good.
THE COURT: Now, I am here to find out, did
anyone speak to you about the proceeding that was filed,
the petition that was filed?
MRS. S.: No.
THE COURT: No one did?
MRS. S.: No.
From the foregoing inquiry, it became clear at the commencement of the hearing that the AIP had no recollection of discussing the filing of the facts of the present case with her retained counsel. Further inquiry by the Court immediately established, from the commencement of the hearing, that the AIP had very little comprehension that she had retained counsel.
THE COURT: Did you hire an attorney?
MRS. S.: Yes.
THE COURT: Why did you hire an attorney?
MRS. S.: We needed her facts.
THE COURT: You needed her facts?
MRS. S.: Yes.
THE COURT: Facts about what?
MRS. S.: About the case.
THE COURT: Who is "we" that need the facts about
the case?
MRS. S.: Well, my husband is the main leader
in this deal, and he takes care of things.
THE COURT: And where is your husband right now?
MRS. S.: Teaching.
THE COURT: Where does he teach?
MRS. S.: Oh, no. I don't know. It's up in
New York State.
THE COURT: And who is it that you hired?
MRS. S.: Who what?
THE COURT: Who did you hire?
MRS. S.: I didn't hire anybody.
THE COURT: Did you hire an attorney?
MRS. S.: Oh, yes, I hired an attorney.
THE COURT: What is the attorney's name?
MRS. S.: Right here.
THE COURT: Do you know her name?
MRS. S.: Sure, I know her name.
THE COURT: What is her name?
MRS. S.: That I forget, the last name.
* * *
MRS. S.: Bethany. Not Bethany, Ethany.
THE COURT: Ethany is her first name. Okay.
When did you first speak to Ethany?
MRS. S. [to Ms. Coyle]: When did I first speak to you?
While the AIP referred to her husband as "the main leader in this deal," it is undisputed that he died in 2012. The AIP later recalled during the hearing that he had died, but she incorrectly [*3]believed that the year was 2013. She clearly did not recall Ms. Coyle's name, or when she first met her or spoke with her, and she possibly confused her with her prior counsel, Ms. Ralph. Further, she confused her son with her late husband, as her son is a teacher. She later corrected herself, and indicated that it was her son, not her husband, who hired the attorney.
The hearing proceeded as follows:
THE COURT: When I asked did you hire an
attorney, you looked to your left at the woman that's
seated next to the reporter. Is that the attorney you
hired?
MRS. S.: Yes.
THE COURT: How did you go about hiring her?
MRS. S.: My son got in touch with the works
and hired her.
THE COURT: What is "the works"? What do you
mean "the works"?
MRS. S.: "The works" is when one does this,
and that, and this, and this. And so he wants to be the
one that does it.
THE COURT: So he hired her for you?
MRS. S.: Yes, he hired her for me.
THE COURT: When was the first time you had a
discussion with the lady that's seated next to the reporter
about doing something for you?
MRS. S.: I don't remember.
THE COURT: Was it a couple days ago, was it
couple of weeks ago?
MRS. S.: No, no. A few weeks ago.
THE COURT: A few weeks ago?
MRS. S.: Yes.
THE COURT: Do you know when you actually met
with her, did you go see her at her office or did she come
see you at your home?
MRS. S.: She came to see me.
THE COURT: And did your son come with her?
MRS. S.: Yes.
THE COURT: So he brought the attorney to you?
MRS. S.: Mm-hmm.
THE COURT: Before your son brought the attorney
to you, had you met this attorney before?
MRS. S.: No.
THE COURT: You have never seen her before he
brought her to you?
MRS. S.: No.
The AIP testified, and it is undisputed, that she had no prior relationship with Ms. Coyle in any way. While the AIP believed that Ms. Coyle had come to her home "a few weeks ago," Ms. Coyle has represented that in fact she first met the AIP on November 13, which was eight days prior to the Court's home visit. She clearly did not recall discussing the case with her attorney, other than it was her son who had brought her.
The AIP specifically stated that she did not have other attorneys in the past. She did not identify or even mention Ms. Ralph, who was present a few feet from her, even though she had effectuated transfers of the AIP's realty, prepared her will dated October 25, 2013, and as recently as February, 2014, prepared a deed which transferred the AIP's remaining interest in 4658 Grosvenor Avenue to the petitioner: As indicated in the transcript:
THE COURT: Have you had other attorneys that
have assisted you before besides the lady that's seated
here?
MRS. S.: No.
THE COURT: Did you ever create any documents,
something like a will or anything like that that you had
any assistance with?
MRS. S.: My husband and I started a will,
but we didn't get to sign it because he died.
THE COURT: And who assisted you with that? Do
you remember who was the attorney that helped you with
that?
MRS. S.: I don't think so, no.
THE COURT: It was just you and your husband?
MRS. S.: Right.
THE COURT: Now, you just told me your husband
died, right?
MRS. S.: Yes.
THE COURT: But, earlier you mentioned that your
husband is somewhere teaching?
MRS. S.: No, no. That was my son that was
teaching.
THE COURT: When did your husband die?
MRS. S.: In October.
THE COURT: Of when?
MRS. S.: 13.
Further inquiry demonstrated that the AIP did not recall any of the alleged conversations with Ms. Coyle which preceded the Court's inquiry. She appeared to confuse the guardianship proceeding with the execution of a will involving her deceased husband, which could explain the AIP's reference [*4]to "what should be included" (i.e., what should be included in a will):
THE COURT: Now, this attorney that's seated
here, did you speak to her about the proceeding, what's
going on?
MRS. S.: Well, generally, yes. What should
be included and what should not be included, things like
that.
THE COURT: What do you mean "what should be
included and what shouldn't be included"?
MRS. S.: Well, for instance, the car, it
should be included.
THE COURT: In what?
MRS. S.: In his writing.
THE COURT: Whose writing?
MRS. S.: My husband's. I don't know how you
mean.
THE COURT: This attorney that's seated next to
you, did you discuss with her about the proceeding, this
proceeding, why what's going on in the court?
MRS. S.: After my husband died, yes.
THE COURT: Yes?
MRS. S.: Oh. Yes, yes, quite a while after
because it was a shock.
THE COURT: What was a shock?
MRS. S.: The death.
The AIP also did not understand the nature and object of the present proceeding:
THE COURT: Have you heard the word
"guardianship" before?
MRS. S.: Guardianship? No, not really.
THE COURT: Do you know what a guardianship is?
MRS. S.: I do know what a guardianship is,
yes.
THE COURT: What is it?
MRS. S.: It's the person who helps fulfill
the need of the person who wrote the deed.
THE COURT: Who wrote the deed. Okay.
The attorney that's seated here, did she explain
to you about the guardianship?
MRS. S.: I don't think so.
During the proceeding, the AIP noticed papers on her bed — a copy of the Order to Show Cause and her own affidavit. The AIP had no recollection of signing the affidavit, even though it was executed only a two days previously.
MRS. S.: .... Are those the papers that my son left for me?
THE COURT: Your son left some papers for you?
MRS. S.: Did he leave them at the end of the
bed there?
THE COURT: Are those papers that your son left
for you?
MRS. S.: Laid out for me, yes.
THE COURT: Do you know what they are?
MRS. S.: No. I mean they are general, but
THE COURT: May I look at them?
MRS. S.: Sure.
(Document handed to the court.)
THE COURT: Do you know why he left the papers?
MRS. S.: Why he left the papers, he want me
to read them.
THE COURT: What the Court has in its possession
is an order to show cause signed by Judge Salmon, which is
dated November 19 of 2014. And this order to show cause
was filed by Caryl S. S.. That's the movant.
Well, there is two things. The order to show cause signed
by Judge Salmon, but this pertains to
MRS. S.: I don't think it really pertains
to.
THE COURT: I think this is filed by this is
filed by, I would assume, her attorney to dismiss
Mrs. S. to dismiss. These are the papers for the
affidavit, which is what I want to ask you about.
I want to show you something, Mrs. S., and
ask you if you signed this, and when you signed it. Let me
first ask you:
What I am showing her is an affidavit in support
of the order to show cause. Do you remember signing this
document here (indicating), at the end it has a signature?
MRS. S.: That's the end of the document?
THE COURT: Yes.
MRS. S.: The beginning is
THE COURT: And all these pages, page one, two,
three, four, five, all of this is what you have said. It
was typed up. And this is what you are saying to me. Do
you remember signing this document?
MRS. S.: No, I don't remember signing this
document.
Further, much was made in the AIP's affidavit of the Court Evaluator's entry into the home with the assistance of police officers, and the distress it allegedly caused the AIP. Contrary those allegations, the AIP in fact had no recollection of meeting the Court Evaluator one week previously, and merely stated that he looked familiar:
THE COURT: Do you at all remember let me ask
you another question then.
There is a gentleman in the corner over there.
Actually, his name is Mr. Goldstein
MRS. S.: Oh, Goldstein.
THE COURT: To you remember does he look
familiar to you?
MRS. S.: Yes, he looks familiar to me.
THE COURT: Did he ever come to your house to
visit you?
MRS. S.: No.
THE COURT: He has never been here before?
MRS. S.: I don't think so.
THE COURT: Did you ever have a conversation with
him?
MRS. S.: Oh, boy. I don't know.
The AIP gave telling testimony as to the influence of her son on her decision-making process. She testified:
THE COURT: Before you make decisions, is there
anyone that you speak to before you do anything?
MRS. S.: Before I do anything?
TE COURT: Before you speak to people, before
you sign any documents, is there any person that you always
speak to first before you do anything, before you speak to
anyone or before you sign any documents?
MRS. S.: I am not aware of it.
THE COURT: What role does your son or your
daughter play in your life?
MRS. S.: My son plays the money part of the
deed. He signs checks and so forth. And my daughter
doesn't do very much. She maybe brings me a deck of cards
or something like that.
Contrary to the contents of her affidavit executed two days earlier, in which the AIP stated in reference to the Court Evaluator that that, "I will never speak to that man again — ever," the AIP willingly and unhesitantly agreed to speak with the Court Evaluator:
THE COURT: Also, part of my job as a Judge is to
find out what's going on, and how you are doing. I can't
always go outside into the community. Do you understand?
MRS. S.: Yes.
THE COURT: I made an exception and came here
today. But, this gentleman that's seated over here, his
name is Mr. Goldstein, he works on behalf of the Court. He
is called a court evaluator. So I send him out, and I said
I can't go to everybody's house or wherever they live,
please go out there and speak to that person. That's the
subject of this proceeding. You understand me?
MRS. S.: Right.
THE COURT: So, I would like Mr. Goldstein to
speak to you. You don't have to speak to him, if you don't
want to. But for me to do my job he helps me to do my
job. So what I would like, with your permission, is if you
would allow Mr. Goldstein to speak to you.
MRS. S.: [TURNING TO COURT EVALUATOR] Speak.
THE COURT: Not now. So, he has your permission
to speak with you. And if you are up to it, when we all
leave, he would like to speak to you?
MRS. S.: All right. Sure.
THE COURT: Is that okay with you?
MRS. S.: That's okay with me.
Despite the fact that she knew nothing about Ms. Coyle, the AIP desired to keep her as her attorney. She testified:
THE COURT: Now, I mentioned to you that if you
want, I can appoint an attorney for you, someone who has no
interest in your finances or anything like that. I can
appoint an attorney for you. Would you like the Court to
do that?
MRS. S.: I have an attorney.
THE COURT: And who is that?
MRS. S.: Right here (indicating).
THE COURT: What is her name?
MRS. S.: I don't know.
THE COURT: That attorney was brought to you by
your son?
MRS. S.: Yes. Right.
THE COURT: I can appoint an attorney that your
family member do not bring to you, that you can have a
relationship just by yourself.
MRS. S.: I want my relationship with her.
THE COURT: Why her?
MRS. S.: Why her? Why not her.
THE COURT: You told me you don't know anything
about her?
MRS. S.: I do know things about her.
THE COURT: What do you know about her?
MRS. S.: I do know that she is a woman,
and I don't know that much.
THE COURT: You don't know anything about her
other than that she is woman.
MRS. S.: I know a few things.
THE COURT: Tell me what you know about her?
MRS. S.: She is a woman. She is a lawyer.
She goes to court. She says everything that she should say
in her speeches.
THE COURT: Like what?
MRS. S.: Well, like I don't know like
what. I don't know.
THE COURT: If you desire a woman lawyer that
goes to court, I can appoint that too?
MRS. S.: Well, I don't need that.
THE COURT: Because?
MRS. S.: I have a lawyer.
THE COURT: Now, do you want her because that's
who your son brought to you?
MRS. S.: No, no, no.
THE COURT: You didn't get her on your own,
right?
MRS. S.: No, I didn't get her on my own.
THE COURT: Your son brought her to you?
MRS. S.: Right, he brought her to me.
THE COURT: He is the one that found her for you?
MRS. S.: That's right.
THE COURT: You didn't find her on your own?
MRS. S.: No.
THE COURT: Is that why you would like to keep
her?
MRS. S.: Well, that's not why I would like
to keep her, no.
THE COURT: So you have to explain to me why you
want to keep her.
***
Explain to me why you want her?
MRS. S.: Why I want her, she lives near me.
THE COURT: She does. Where does she live?
MRS. S.: I don't know exactly, but it's
somewhere in the neighborhood.
THE COURT: How do you know she lives near you?
MRS. S.: Because I have been told that.
THE COURT: Who told you that?
MRS. S.: I don't know who.
THE COURT: And why else do you want her?
MRS. S.: I thought she was a very thoughtful
person.
Ms. Coyle confirmed on the record, outside of the presence of the AIP, that she was in fact contacted by the AIP's son on November 12 to be the AIP's counsel, and that she first visited her on Tuesday, November 13. She did not have any previous relationship with the AIP, social or professional. She asserted that she had asked her the questions listed in the AIP's affidavit to establish her state of mind, and that she was clear-headed at the time. Ms. Coyle freely admitted that AIP's evident confusion and poor memory of events was a "big surprise," and, "That she was as unclear as she was. I was surprised." Nevertheless, she insisted that it was not unusual for relatives to secure counsel for the AIP, and that the AIP was "competent" and "had capacity" when she retained her. She further indicated that she had been in communication with the son Kenneth S. following her retention as counsel to the AIP. Despite her assertions that the AIP was clear-minded and "had capacity," she felt compelled to ask the AIP's visiting nurse if, in her opinion, the AIP required a guardian to be appointed.
Ms. Coyle additionally confirmed that she lived a block away from the AIP's home, and that she had not known her socially or professionally before meeting her in connection with the present litigation.
MHL 81.10(a) provides, "Any person for whom relief under this article is sought shall have the right to choose and engage legal counsel of the person's choice. In such event, any attorney appointed pursuant to this section shall continue his or her duties until the court has determined that retained counsel has been chosen freely and independently by the alleged incapacitated person." (Emphasis added.) It has been observed that "although an individual possesses no absolute right to [*5]representation by an attorney of his choice, any restriction imposed on that right will be carefully scrutinized. An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association and the Sixth Amendment right to counsel and will not yield unless confronted with some overriding competing public interest." (In re Abrams, 62 NY2d 183, 196, 465 N.E.2d 1, 476 N.Y.S.2d 494 [1984] [Citations omitted].) The Court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person."
In view of the allegations of undue influence and functional limitations in the petition, this Court was constrained to ascertain if, indeed, Ms. Coyle should represent the AIP — especially as the litigants evidently expected the proceeding would continue in the absence of the AIP, and without providing the Court an opportunity to determine whether the AIP choose to have Ms. Coyle represent her. Despite the evident reluctance of the parties and counsel to bring the AIP to Court, MHL § 81.11(c) requires the presence of the AIP at the hearing "so as to permit the court to obtain its own impression of the person's capacity." Moreover, the Court's obligation to safeguard the interest of the AIP must necessarily include ascertaining whether counsel allegedly retained by the AIP, was in fact, "freely and voluntarily" retained.[FN3]
The AIP clearly, based on her statements and the observations of the Court, did not retain Ms. Coyle. Her confusion at the hearing was manifest, as indicated by references to her husband, who is deceased; her short and long-term memory loss; her lack of comprehension as to the purpose of the present proceeding [FN4] and the role of her counsel; and her inability to recall her prior counsel, the name of her present counsel, or the events in this litigation which occurred only days earlier. Ms. Coyle herself conceded that the AIP's demeanor and conduct constituted a "big surprise," and she stated forthrightly in argument in open court that she was "shocked at her [the AIP's] absence of knowing anything." Even more significant was that the AIP had no recollection of the Court Evaluator, despite the hyperbolic accusations in her affidavit as to his alleged extreme conduct.[FN5]
It is troubling that Ms. Coyle, who had no prior relationship with the AIP, was brought into this case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP and her financial affairs, transferring large amounts of property to himself without any authority to do so. While it may not be unusual for an attorney to be contacted or selected by a relative, it is unusual when that relative is a person charged with exerting undue influence, and with using his agency powers improperly for his own gain.[FN6] Moreover, while the focus of the present inquiry is not the AIP's "competence," the Court's findings that the AIP has memory deficits as to crucial matters, and displays evident confusion, further supports the conclusion that she did not act freely and independently, but merely acquiesced in the selection of counsel made by her son, without any real comprehension or understanding of her own interests. Ms. Coyle has not "been chosen freely and independently by the alleged incapacitated person."
The Court made clear during this hearing that the present inquiry does not involve any criticism of the conduct, ability or integrity of Ms. Coyle. The Court stated on the record at the hearing in the AIP's home that, "It's not you as an attorney, per se, it's how you got involved in this case and the allegations that's presented." However, the unusual events which transpired, involving the son's refusal to allow the Court Evaluator to speak with the AIP, combined with the failure to bring the AIP to Court despite a clear direction to do so, certainly warranted that the Court undertake immediate action to determine the relevant facts and circumstances of the AIP's situation.
Accordingly, Ms. Coyle is disqualified from further representation of the AIP.
The Court hereby appoints Lenore Kramer, Esq., as counsel for the AIP.
The parties shall submit, on notice to the AIP's counsel, a proposed budget for the payment [*6]of the AIP's living expenses so that the restraint previously imposed by the Court may be modified to allow the payment of the bills and expenses of the AIP pending determination herein.
The matter is adjourned to December 4, 2014, at 2:00 P.M.
Dated:____Nov. 25, 2014________________/s/__________
HON. SHARON A. M. AARONS
FootnotesFootnote 1:The affidavit, as detailed herein, contains a mix of factual allegations and legal argument. A person reading the affidavit would incorrectly receive the impression that the person making these recitations had a thorough comprehension of the facts and legal issues presented. As more fully explained below, this is far from the case.
Footnote 2:Ms. Coyle has suggested during argument on November 24, 2014, that the AIP may have been frightened, nervous, or startled by the presence of eleven strangers in her bedroom. To the contrary, the Court observed the AIP to be calm, pleasant, open and smiling. She did not indicate by her behavior or demeanor that she was nervous or distressed in any way, nor did she ever state or suggest that she was. She appeared healthy and composed at all times.
Footnote 3:The Court notes that there is no impediment to the Court's placing the AIP on the witness stand to ascertain the relevant facts. Matter of Heckl, 66 AD3d 1344, 886 N.Y.S.2d 295 (4th Dept. 2009); Matter of Aida C., 44 AD3d 110, 840 N.Y.S.2d 516 (4th Dept. 2007).
Footnote 4:Many of the AIP's statements appeared to reference deeds and wills, suggesting to the Court that her comprehension of the role of counsel was limited to the execution of these instruments.
Footnote 5:The AIP's affidavit in support of her Order to Show Cause indicates that she refused to allow him to interview her in the absence of her counsel. The Court finds more plausible the explanation in the Court Evaluator's report that the Court Evaluator was barred from entering the AIP's home by an aide, who stated that "Ken," the AIP's son, told her not to allow the Court Evaluator to enter the house. In addition, the Court Evaluator stated on the record at the hearing at the AIP's home that her son had stated to him that he did not know who the Court Evaluator was and what the case was about — despite the fact that he had retained an attorney for his mother two days earlier. Further, after the Court Evaluator obtained access to the home, the AIP received a phone call from her son, after which she stated that her son had told her not to communicate with the Court Evaluator. While the AIP may choose not to speak with the Court Evaluator (Matter of Aida C., 44 AD3d at 115-16), her refusal to do so appears to have been the result of her son's influence, and not a reasoned determination or expression of the AIP's own volition — as indicated by her unhesitating willingness to speak with the Court Evaluator when she was questioned by the Court. Nor did it appear to result from a reasoned determination not to speak in the absence of counsel. Moreover, these circumstances appear to suggest that the AIP's son believed that despite bringing Ms. Coyle into the proceeding, he would remain in charge of directing the course of the litigation. Lastly, there was no legal requirement that counsel be present at the interview by the Court Evaluator. Matter of G.G., 4 Misc 3d 1025(A), 798 N.Y.S.2d 343 (Sup. Ct., Kings County, 2004) (denying application to strike the Court Evaluator's report, and for the Court Evaluator to recuse herself, due to the fact that the Court Evaluator met with petitioner and observed her without counsel being present).
Footnote 6:See In re Moulinos, 2009 NY Misc. LEXIS 2412, 241 N.Y.L.J. 60 (Sup. Ct., Queens County 2009) ("A preliminary inquiry by the Court, as to [the AIP'] competency to retain an attorney, indicated that the AIP had obvious memory problems and during the entire hearing it was apparent that she had some dementia and an apparent failure of some of her faculties. It also became apparent that her husband was active in obtaining her attorney and under other circumstances the Court would have disqualified her attorney and appointed independent counsel.")
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