D.E. v P.A.

[*1] D.E. v P.A. 2016 NY Slip Op 51230(U) Decided on June 22, 2016 Supreme Court, Westchester County Christopher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 22, 2016
Supreme Court, Westchester County

D.E., Plaintiff,

against

P.A., Defendant.



XX/22



Elizabeth E.Erickson, Esq.

Bodnar & Milone LLP

Attorney for Defendant

140 Grand Street

White Plains, NY 10601

Howard B. Felcher, Esq.

Law Offices of Howard B. Felcher, PLLC

Attorney for Plaintiff

655 Third Avenue

Suite 2600

New York, NY 10017
Linda Christopher, J.

The following papers numbered 1- 63 were considered in connection with defendant's motion brought by Order to Show Cause and plaintiff's cross-motion:

PAPERS NUMBERED

Order to Show Cause/ Affidavit of Defendant/Affirmation of Elizabeth 1 - 30

E. Erickson, Esq./Affirmation of Peter O. Bodnar, Esq./Affidavit of Michael Clear, Esq./Affidavit of S. M. W./Affidavit of M. A. K., R.N., M.B.A./Exhibits/Memorandum of Law

Notice of Cross Motion/Affirmation of Howard B. Felcher, Esq./ 31 - 54

Affidavit of R. K., plaintiff's daughter,/Affidavit of Services/Memorandum of Law/Exhibits

Reply Affirmation of Elizabeth E. Erickson, Esq./Reply Affidavit of Defendant/Affidavit of Michael Clear/Exhibits/Memorandum 55 - 63 of Law

In this matrimonial matter defendant wife seeks an order:

1. Pursuant to CPLR 3211(a)(3) dismissing the instant action for divorce by reason of plaintiff's incapacity;

2. Pursuant to CPLR 3217(b) granting defendant leave to discontinue her counterclaim for divorce interposed in defendant's verified answer and counterclaim sworn to on October 5, 2015;

3. Directing R. K., plaintiff's daughter, as holder of plaintiff's power of attorney, to execute HIPAA authorizations for the release of plaintiff's medical records from NYU Langone Medical Center, the Bristal at Armonk, Meadowbrook Farms and those referable to the evaluation performed in connection with involuntary conservatorship proceedings before the Trumbull Probate Court in Connecticut or, in the alternative, so-ordering proposed subpoena duces tecum for plaintiff's medical records; and

4. Awarding defendant counsel fees, costs and disbursements payable by plaintiff.

Plaintiff husband cross moves for an order granting plaintiff an award of counsel fees and costs in connection with opposing defendant's application in the amount of $14,588.75.

Background

The parties were married on — — , 2005. This was a second marriage for both parties and each had adult children from their prior marriage. In May 2006 plaintiff was diagnosed with Parkinson's Disease. Defendant avers that she devoted herself to providing support to plaintiff and taking care of his needs as the disease progressed. By March 2015 the disease had progressed to the point that it was necessary to arrange for plaintiff to reside in an assisted living facility and the Bristal at Armonk was chosen by plaintiff and defendant with input from plaintiff's two daughters and his former wife.

According to defendant, during the few weeks prior to plaintiff moving into the Bristal, plaintiff's daughters and former wife became increasingly intrusive into the parties' lives, including the parties' finances. Defendant claims that it was at this point that she had the parties' joint account at Morgan Stanley split equally and she arranged for plaintiff's daughter R. to have access to plaintiff's accounts so that she could be designated as plaintiff's representative for financial matters at the Bristal. Defendant was designated as a "responsible party" and an emergency contact along with R. on the forms completed upon plaintiff's admission to the Bristal. Contradicting defendant's assertions, R. claims that the Bristal contacted her in late April, 2015 when defendant refused to guarantee payment for the Bristal, so she agreed to do so. R. also asserts that in the months leading up to his admission to the Bristal, plaintiff reached out to R. for help, as the fighting between plaintiff and defendant had become more caustic.

On May 4, 2015, plaintiff moved to the Bristal. Defendant claims that when she went to visit plaintiff on May 11, 2015, the day after he had a seizure, he was more confused than usual.

On May 13, 2015, unbeknownst to defendant, plaintiff retained the Kitson firm. Defendant asserts that R. arranged for the meeting, although R. denies this. Defendant claims that on May 15, 2015 plaintiff's daughter physically blocked defendant from visiting plaintiff at the Bristal. That same day, defendant received correspondence dated May 14, 2015 from the Kitson firm stating that plaintiff was seeking a divorce. Defendant claims from that point on, plaintiff's family undertook to exclude her from plaintiff and from being involved with his care.

On May 19, 2015 R. had determined to move plaintiff, who was experiencing cognitive impairment, to the (Reflections) Memory Unit at the Bristal and on May 21, 2015, (the same day [*2]plaintiff swore to his Verified Complaint for Divorce), he was moved to the (Reflections) Memory Unit.[FN1] On May 20, 2015 defendant asserts she was able to visit plaintiff, but only with assistance of the director. Defendant claims that during her visit R. would not leave her alone with plaintiff and would not let plaintiff answer when defendant questioned him about filing for divorce. Defendant later found out the Summons with Notice was filed that same day, May 20. According to defendant's counsel the Verified Complaint was not served upon them until August 20, 2015. Defendant's Verified Answer and Counterclaim were signed by defendant on October 5, 2015 and filed October 13, 2015.

Defendant claims the next time she saw plaintiff subsequent to her visit with him on May 20 was on November 19, 2015 at the Preliminary Conference. Defendant claims plaintiff did not speak at the conference. The parties signed the Preliminary Conference Stipulation/Order with Respect to Grounds for Divorce.

Arguments

It is defendant's position that plaintiff's children, especially his daughter, R., have intentionally tried to conceal plaintiff's incapacity, in an effort to procure a divorce on behalf of plaintiff which he himself would not have wanted. It is defendant's contention that by this divorce action, R. is attempting to ensure she and her sister retain control over plaintiff's assets upon his death, free of any claim by defendant other than her limited entitlement pursuant to the parties' Prenuptial Agreement.

Counsel for defendant asserts that upon being retained in June, 2015 the issue of plaintiff's capacity was raised with plaintiff's former attorney who maintained that plaintiff was fully capable of participating in the action. According to counsel for defendant, at the Preliminary Conference in November, 2015, when plaintiff executed the Preliminary Conference Stipulation/Order with Respect to Grounds for Divorce, plaintiff's counsel again represented he understood the nature of the proceedings. Thereafter, plaintiff failed to appear at the Compliance Conference and the Trial Ready Conference; defendant's counsel asserts that plaintiff's prior counsel, Ms. Kitson blamed plaintiff's failure to appear on the weather and on being unable to obtain transportation and continued to represent that he possessed sufficient cognition to be deposed and engage in settlement discussions. According to defendant, Ms. Kitson refused to make plaintiff available for a deposition, despite her agreeing to make him available and despite her representations regarding his capacity to proceed.

Counsel for defendant asserts that it was not until receipt of subpoenaed records from the Bristal on March 11, 2016 that the nexus between the commencement of the action (May 20) and the plaintiff being moved to the Memory Unit at the Bristal (May 21 - that is also the same date he allegedly signed his complaint) was discovered and defendant was given cause to doubt the representations by plaintiff's prior counsel regarding his capacity.

After receipt of the records from the Bristal on March 11, 2016, counsel for defendant claim that the issue of plaintiff's capacity was again raised by them at the Trial Ready Conference on March 16, 2016, but Ms. Kitson continued to maintain that plaintiff was sufficiently capable of maintaining the instant action and was cognitively aware. According to [*3]defendant's counsel, Ms. Kitson represented she would obtain medical records to support her representations, but she subsequently advised defendant's counsel that such records would not be forthcoming. Defendant's counsel's requests that plaintiff's daughter, R. K., who has Power of Attorney, sign HIPAA's for medical records were denied; first by Ms. Kitson and then by current counsel.

By petition dated April 12, 2016, Ms. K. commenced a proceeding in the Connecticut court (plaintiff is currently residing in a facility in Connecticut) seeking to be appointed as conservator of plaintiff. On May 4, 2016 Ms. K. filed a Petition/Appointment of Temporary Conservator ex parte wherein it is alleged that plaintiff is incapable of managing his affairs and is incapable of caring for himself. That same day Ms. K. was granted an ex parte Decree/Appointment of Temporary Conservator signed by the Hon. T.R. Rowe. On May 9, 2016 the Ex Parte Decree Appointment of Temporary Conservator was confirmed, and Ms. K. was appointed temporary conservator of the person and estate of plaintiff "for the limited purpose of representing the Respondent's interests in connection with the pending dissolution of marriage litigation, including any settlement negotiations, and, to the extent necessary, engaging and paying the reasonable fees and expenses of counsel in connection with such litigation and in these and related proceedings." As set forth in the May 9, 2016 Order, the Connecticut Court found by clear and convincing evidence that immediate and irreparable harm to the respondent will result if the temporary conservator(s) is/are not appointed forthwith because: For the limited purpose of representing the Respondent's interests in connection with the pending dissolution of marriage litigation, including any settlement negotiations, and, to the extent necessary, engaging and paying the reasonable fees and expenses of counsel in connection with such litigation and in these and related proceedings.

On June 2, 2016 an Order was issued extending the appointment of R. K. as temporary receiver to July 2, 2016. That order states "[t]he allegations of said application are proved, and there is reasonable cause for granting the same, and to grant said request will be in the best interest of the parties in interest." According to defendant's Connecticut counsel, Michael Clear, Esq., the hearing with respect to Ms. K.'s initial petition is scheduled to be heard on June 23, 2016.

Pursuant to Connecticut law, the appointment of temporary conservator requires the court to find by clear and convincing evidence that

(1) [t]he respondent is incapable of managing his or her affairs or incapable of caring for himself or herself, (2) immediate and irreparable harm to the mental or physical health or financial or legal affairs of the respondent will result if a temporary conservator is not appointed, and (3) appointment of a temporary conservator is the least restrictive means of intervention available to prevent such harm.

C.G.S.A. §45a-654(a).

Defendant's Motion to Dismiss

Defendant, claiming plaintiff lacks capacity, moves to dismiss this action for divorce pursuant to CPLR §3211 (a)(3) which reads "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (3) the party asserting the cause of action has not legal capacity to sue."

Pursuant to CPRL §3211(e)

Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading.

Plaintiff argues that pursuant to the mandate of CPLR 3211 (e) defendant is barred from raising the ground of lack of capacity for dismissal as she failed to move to dismiss on such grounds before she served her answer, and no such affirmative defense was raised in her answer. Plaintiff asserts defendant admittedly had concerns regarding plaintiff's competency as far back as June 2015 when counsel was first retained and questioned plaintiff's prior counsel on the issue.

In reply, defendant asserts at the time she filed her Verified Answer in November 2015, the basis for dismissal based upon plaintiff's lack of capacity was not known to her. Defendant claims she relied, to her detriment, upon the repeated representations by plaintiff's prior counsel as to plaintiff's capacity, cognition and ability to participate in these proceedings, and that it was not until receipt of the records from the Bristal in March 2016 in response to a subpoena that defendant had a basis to doubt plaintiff's counsel's veracity.

The Court disagrees with defendant. The Court finds that defendant should have either filed a pre-answer motion to dismiss, or she should have preserved her right to object to plaintiff's capacity by raising same as an affirmative defense in her answer. When defendant's counsel was first retained they questioned plaintiff's capacity, and although his counsel claimed he was able to participate in these proceedings, defendant should have included plaintiff's alleged lack of capacity in the answer as an affirmative defense. Although defendant may not have had extensive access to plaintiff, she was aware of the disease he had, and that he was having seizures at times that affected his cognitive abilities.

Accordingly, defendant's request for an order pursuant to CPLR 3211(a)(3) dismissing the instant action for divorce by reason of plaintiff's incapacity is denied.

However, defendant also contends that Ms. K. cannot maintain this divorce action for plaintiff, as the guardian of the person and property of an incompetent person cannot maintain an action of absolute divorce against the incompetent person's spouse. In re Wechsler, 3AD3d 424 (1st Dept. 2004); Mohrmann v. Kob, 291 NY 181 (1943).

In Mohrmann, 291 NY 181, the Court of Appeals determined that then present Civil Practice Act Section 1147 prohibited the committee of the property of an incompetent person to prosecute an action for divorce on behalf of the incompetent person, as that section limits the right to maintain an action to procure a judgment of divorce to a husband or wife.[FN2] The Mohrmann Court wrote

[i]t has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to a husband or a wife' the right to maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant's adultery', the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name any action which the person with respect to whom he is appointed might have maintained if the appointment had not been made.' A statute conferring upon the committee of the property of an incompetent a general power should not be construed to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring any action or special proceeding' in behalf of the incompetent, the use of the word any' did not include an action for divorce which the Legislature has always treated separately and completely.

Mohrmann, 291 NY at 188-189.

Many years later in In re Wechsler, 3 AD3d 424 (1st Dept. 2004), the First Department, citing to Mohrmann as being dispositive on the issue, held that the guardian of the incompetent husband could not institute a no-fault divorce proceeding in Pennsylvania against the wife, despite the grant of authority to the guardian to "maintain any civil judicial proceeding." The Wechsler Court wrote that in Mohrmann the Court of Appeals "noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit." In re Wechsler, 3 AD3d 424. The Court further opined that "absent statutory authority permitting a guardian to commence a divorce on behalf of a ward, the courts may not assume to grant such power (citations omitted). Id. at 425.

Counsel for plaintiff claims that defendant's argument fails, as plaintiff has not been adjudged to be an incompetent person, and that there is no medical evidence to support her claim that plaintiff is incapacitated. In reply, counsel for defendant maintains that Ms. K.'s appointment as temporary conservator is proof contrary to such an assertion by plaintiff's counsel.

At this juncture, the issue of plaintiff's competency is before the Connecticut court. By order dated June 2, 2016, Ms. K.'s appointment as temporary conservator of the estate and person of plaintiff was extended to July 2, 2016. On June 23, the Connecticut court will be holding a hearing regarding Ms. K.'s petition pursuant to which she is seeking to be appointed as conservator of plaintiff.

Based on the foregoing, in the event that the Connecticut court finds plaintiff to be incompetent, Ms. K., as his conservator will not be able to continue to prosecute this action for divorce on his behalf. Once plaintiff is found to be incompetent, Ms. K. can no longer maintain [*4]the action, as the Court of Appeals has held that the statute providing for an action for divorce (currently DRL §170) limits the right to maintain an action to procure a judgment of divorce to a husband or wife. Therefore, even assuming arguendo, that plaintiff was competent when the action commenced, if he is found to be incompetent at a later stage in the proceedings, the action must be dismissed.

Plaintiff also argues that defendant is precluded from bringing a motion to dismiss when she has not moved to vacate the Preliminary Conference Stipulation/Order with Respect to Grounds. However, as acknowledged by plaintiff's counsel, defendant has an application pending pursuant to which she is seeking an order vacating the Preliminary Conference Stipulation/Order with Respect to Grounds. The Court notes that in the event that the plaintiff is found to be incompetent, then based on the fact that this action cannot continue, the Preliminary Conference Stipulation/Order with Respect to Grounds will be vacated.

Defendant's Motion to Discontinue Counterclaim

Pursuant to CPLR §3217(b)

Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.

The authority to grant discontinuance is within the sound discretion of the trial court and a party seeking to discontinue his action should be permitted to discontinue at any time "unless substantial rights have accrued or his adversary's rights would be prejudiced thereby". Louis R. Shapiro, Inc. v. Milspemes Corp., 20 AD2d 857 (1st Dept 1964).

Defendant claims she interposed a counter claim only to preserve her rights and legal options, based on the representations made to her at that time, significantly, the representations made by plaintiff's former counsel as to plaintiff's capacity and ability to participate in the action. She does not want to divorce plaintiff.

Plaintiff argues that in this case the cause of action has been submitted to the Court for determination, and therefore, an order discontinuing the action is prohibited absent a stipulation by all parties agreeing to same. Plaintiff claims that the cause of action has been resolved by virtue of the "so ordered' Stipulation Regarding Grounds of November 19, 2015.

The Court notes that the "so ordered" Stipulation Regarding Grounds was only with regard to plaintiff's action.

Based on the foregoing, and in the Court's discretion, defendant's request for an order granting defendant leave to discontinue her counterclaim for divorce interposed in defendant's verified answer and counterclaim sworn to on October 5, 2015 is granted.

Defendant's Motion Regarding Subpoenas

Defendant's request for an order directing R. K., as holder of plaintiff's power of attorney, to execute HIPAA authorizations for the release of plaintiff's medical records from NYU Langone Medical Center, the Bristal at Armonk, Meadowbrook Farms and those referable to the evaluation performed in connection with involuntary conservatorship proceedings before the Trumbull Probate Court in Connecticut or, in the alternative, so-ordering proposed subpoena duces tecum for plaintiff's medical records is denied at this time, as premature. Currently the [*5]issue of plaintiff's competency is before the Connecticut court. On June 23, the Connecticut court will be holding a hearing regarding Ms. K.'s petition pursuant to which she is seeking to be appointed as conservator of plaintiff.

Defendant's Motion for Counsel Fees

Defendant request that the Court direct Ms. K., as plaintiff's conservator, pursuant to 22 NYCRR 130-1.1 to reimburse defendant for counsel fees, costs and disbursements incurred in this attempt to perpetrate a fraud upon defendant and the Court. Defendant asserts that as of April 25, 2016 her counsel fees were in the amount of $55,244, and as of May 25, 2016 she had incurred additional counsel fees of $22,374.

Pursuant to 22 NYCRR §130-1.1(a)

The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct as defined in this Part.

22 NYCRR §130-1.1(a).

Conduct is defined as frivolous pursuant to 22 NYCRR §130-1.1(c) if

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

22 NYCRR. §130-1.1(c).

There has not been a finding that plaintiff has engaged in frivolous conduct and that Ms. K. (as plaintff's conservator) has attempted to perpetrate a fraud upon defendant and the court.

Accordingly, based on the facts of this matter and in the Court's discretion, defendant's request for counsel fees is denied.

Plaintiff's Cross-Motion for Counsel Fees

Plaintiff seeks counsel fees in the sum of $14,588 representing the legal fees incurred in connection with the instant application.

Based on the facts of this matter and in the Court's discretion, plaintiff's request for counsel fees is denied.

Counsel and parties are to appear for a conference before the Court on July 20, 2016 at 9:30 a.m.

To the extent any relief requested in Motion Sequences 2 and 4 was not addressed by the Court it is hereby denied.

This decision shall constitute the order of the Court.

ENTER

Dated: June 22, 2016

White Plains, NY

[*6]

HON. LINDA CHRISTOPHER, J.S.C. Footnotes

Footnote 1:As reflected in the Bristal case notes received on March 11, 2016, by defendant's counsel pursuant to a subpoena.

Footnote 2:Civil Practice Act Section 1147 has since been replaced by DRL §170 that contains the same limiting language. DRL§170 reads "[a]n action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds."