Matter of Incorporated Vil. of Patchogue

[*1] Matter of Incorporated Vil. of Patchogue (Zahnd) 2010 NY Slip Op 50755(U) [27 Misc 3d 1215(A)] Decided on April 9, 2010 Supreme Court, Suffolk County Luft, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 30, 2010; it will not be published in the printed Official Reports.

Decided on April 9, 2010
Supreme Court, Suffolk County

In the Matter of the Application of The Incorporated Village of Patchogue, Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Property of Alice Zahnd, An Alleged Incapacitated Person



42301/08



JEFFREY T. GRABOWSKI, ESQ.

Guardianship Referee

Supreme Court, Suffolk County

400 Carleton Avenue

Central Islip, New York 11722

EGAN & GOLDEN, LLP

Attorneys for petitioner

96 South Ocean Avenue

Patchogue, New York 11772

VINCENT J. MESSINA, JR., ESQ.

Attorney for Alice Zahnd

267 Carleton Avenue

Suite 301

Central Islip, New York 11722

MENTAL HYGIENE LEGAL SERVICE

Court Evaluator

One Court Street

Riverhead, New York 11901

DANIEL J. SMITH, ESQ.

Special Guardian

David A. Smith, Esq., PLLC

500 Old Country Road

Suite 109

Garden City, New York 11530

Martha L. Luft, J.

The petitioner commenced this proceeding to seek the appointment of a Guardian of the property of Alice Zahnd pursuant to article 81 of the Mental Hygiene Law, with powers relating generally to responding to alleged Village Code violations existing on her property located at 16 Bransford Street, Patchogue, New York . A hearing was held in this matter at which Ms. Zahnd was represented by counsel. Ms. Zahnd chose not to attend the hearing as, apparently, is her prerogative (see, Matter of Lillian U., 66 AD3d 1219, 887 NYS2d 321 [3d Dept 2009] [suggesting an Alleged Incapacitated Person's presence at a hearing could be excused based on that person's unwillingness to attend]).

The Court finds that it has jurisdiction over Alice Zahnd and that Suffolk County is the proper venue of this proceeding. Ms. Zahnd resided at the Patchogue Nursing Center, 25 Schoenfeld Boulevard, Patchogue, New York when this proceeding was commenced, and continues to reside there. As noted above, she also owns property at 16 Bransford Street in Patchogue.

Alice Zahnd was born on xx/xx/1931, and, thus, is seventy-eight years old. She entered the Patchogue Nursing Center in November of 2006, coming from Brookhaven Memorial Hospital where she had spent the prior couple of weeks.

Ms. Zahnd has not consented to the appointment of a Guardian. For the reasons stated below, the Court finds that a Special Guardian should be appointed for Alice Zahnd with powers pertaining to her property management needs, and the power to explore and investigate whether additional powers are required. [*2]

The clear and convincing evidence before the Court establishes that the alleged incapacitated person, Alice Zahnd, suffers from functional limitations. Specifically, she requires assistance with all of her activities of daily living at the Patchogue Nursing Center. She needs assistance with her mobility and has fallen frequently in the Nursing Center. Prior to entering the hospital and then the nursing home, Ms. Zahnd was living in deplorable conditions, without a functioning kitchen and bathroom, and with animal feces scattered about the floor. She is not able to manage her property, and is, at times, under the misapprehension that her parents are looking after her house for her. Although she has been in the Patchogue Nursing Center for almost three and a half years, she states that she is just a visitor there and will return home. Due to the high level of care she requires, her statement is unrealistic, to say the least. She claims that she pays her own property taxes although Village records indicate that taxes have not been paid for the past couple of years. Thus, the clear and convincing proof further establishes that Ms. Zahnd lacks the understanding or appreciation of the nature and consequences of her functional limitations relative to the management and potential liabilities that exist and that may arise in connection with her property at 16 Bransford Street, Patchogue, New York, and that she is likely to suffer harm based thereon.The appointment of a Special Guardian to address issues relative to, and arising out of, such real property is, therefore, necessary to prevent harm to Ms. Zahnd.

Although, even without drawing any inference based on Ms. Zahnd's election not to appear at the hearing of this matter, there is sufficient clear an convincing evidence in the record to support a finding that Ms. Zahnd is an incapacitated person requiring the assistance of a Special Guardian, the Court's findings are, nevertheless, further supported by an inference drawn against Ms. Zahnd based on her non-appearance (see, e.g., Brown v City of New York, 50 AD3d 937, 856 NYS2d 665 [2d Dept 2008]; see generally, Matter of Heckl, 66 AD3d 1344, 886 NYS2d 295 [4th Dept 2009]).

The Court Evaluator recommended that a Guardian be appointed with personal needs powers, as well as property management powers. However, the petition did not request the former relief, and the Court, therefore, cannot find that there was proper notice to Ms. Zahnd of such a request. Moreover, the evidence adduced did not present a clear picture of how and whether all of Ms. Zahnd's personal needs are currently met without the benefit of a Mental Hygiene Law article 81 Guardian.

The powers requested in the petition focus exclusively on addressing the legal issues surrounding the property at 16 Bransford Street, Patchogue, New York. The petitioner did not take the trouble to investigate and address any other property management needs Ms. Zahnd might have. The Court is thus constrained in detailing the powers appropriate for Ms. Zahnd's Guardian due to the paucity of information presented at the hearing. For example, the Court Evaluator alluded to the fact that a sale of the property might be in Ms. Zahnd's interests to enable her to perhaps reside in a more pleasant nursing facility.

Under all of the above circumstances, the Court finds that the appointment of a Special Guardian to address the legal issues surrounding the property at 16 Bransford Street, Patchogue, New York, to investigate and report back to the Court whether additional powers should be sought, and/or [*3]a permanent guardian appointed, and to make whatever application may be appropriate based upon such investigation is warranted.

The Special Guardian shall be Daniel J. Smith, Esq.

The Special Guardian shall have the following powers:

To undertake an investigation to determine the assets of Alice Zahnd, and to marshal accounts or other liquid assets sufficient to allow him to exercise the additional powers granted to him as Special Guardian for Alice Zahnd, and to pay such compensation as the Court may award herein;

To prosecute, defend, settle and maintain any cause of action, arbitration or civil judicial proceeding concerning, or arising out of Alice Zahnd's ownership interest, in the real property located at 16 Bransford Street, Patchogue, New York, including commencing a summary proceeding to recover possession of such real property or an ejectment action, as may be appropriate, provided that any settlement of any judicial action or civil judicial proceeding shall be subject to the approval of the Judge or Justice presiding therein;

To nominate for appointment by the Court counsel to appear for the Special Guardian in any such cause of action, arbitration or civil judicial proceeding;

To nominate for appointment by the Court counsel to represent the rights and interests of Alice Zahnd relative to any criminal proceeding pending or that may be commenced against Alice Zahnd arising out of or in connection with her ownership interest in the real property located at 16 Bransford Street, Patchogue, New York;

To take reasonable and appropriate steps to cure or eliminate any unsafe or illegal conditions existing at the real property located at 16 Bransford Street, Patchogue, New York, including retaining the services of appropriate, qualified contractors, the compensation of which shall be subject to the approval of the Court;

To conduct an appropriate investigation of all relevant circumstances to assess whether it is in the best interests of Alice Zahnd to sell her interest in the real property located at 16 Bransford Street, Patchogue, New York, and as he may deem appropriate, to move for an expansion of his powers as Special Guardian to include the power to commence a proceeding to sell Alice Zahnd's interest in the subject real property pursuant to article 17 or the Real Property Actions and Proceedings Law;

To nominate for appointment by the Court attorneys, accountants, brokers and similar professionals in connection with the Special Guardian's powers relative to issues concerning the real property located at 16 Bransford Street, Patchogue, New York and Alice Zahnd's interest therein;

To investigate whether Alice Zahnd has additional property management needs requiring the expansion of the Special Guardian's powers or the appointment of a permanent Mental Hygiene Law [*4]article 81 Guardian, to report to the Court with respect to the result of such investigation, and to move for an expansion of powers or the appointment of a permanent Property Management Guardian as may be warranted;

To investigate whether Alice Zahnd has personal needs issues, (including an issue as to whether a more suitable or pleasant place of abode should and can be obtained), requiring the expansion of the Special Guardian's powers or the appointment of a Mental Hygiene Law article 81 Guardian, to report to the Court with respect to the result of such investigation, and to move for an expansion of powers or the appointment of a permanent Personal Needs Guardian as may be warranted; and

To serve as his own counsel for the purpose of making further applications to this Court in this proceeding, inasmuch as there is compelling reason to avoid the additional expense and complication that would arise if the Special Guardian is required to nominate counsel for appointment for each subsequent application that may be made to this Court (see, 22 NYCRR 36.2[c][8]).

The Special Guardian shall report to the Court on all matters done pursuant to the order of appointment, and shall serve as such until discharged by order of the Court (see, Mental Hygiene Law § 81.16[b]).

The requirement of a bond is waived.

The appointment of a Special Guardian with the powers specified above constitutes the least restrictive form of intervention consistent with this Court's findings after the hearing.

As provided in Mental Hygiene Law § 81.16[b], the Court may approve "a reasonable compensation" for the Special Guardian. Accordingly, the Special Guardian is granted leave to submit a detailed affidavit of services actually rendered and accompanying time records in support of an application for compensation to be based on the actual services rendered and the time expended. It should be noted that the services of a Guardian are not calculated at the same rate as are legal services (see, Matter of Helen C., 2 AD3d 729,768 NYS2d 617 [2d Dept 2003]; Matter of Arnold "O", 256 AD2d 764, 681 NYS2d 627 [3d Dept 1998]).

The proposed Special Guardian shall submit to the Guardianship Clerk of this Court and the Guardianship Referee the designation of the Clerk to receive process and consent to act, and the proposed commission, within twenty days from the date of the signing of the order and judgment.

A compliance conference will be scheduled to allow the Court to monitor whether a proposed order and judgment has been noticed for settlement. The compliance conference may be cancelled if the Court has received a proposed order and judgment with a notice of settlement.

In addition, a control date shall be set to allow the Court to monitor whether the Special Guardian has reported with respect to accomplishing the tasks for which he has been appointed. The Court may seek a status report if the Special Guardian's tasks are not concluded by the control date. [*5]

Any of the Court's appointees and anyone else in this matter seeking an award of compensation from the assets of Alice Zahnd should submit a detailed affidavit of services.

Counsel for Alice Zahnd is directed personally to deliver to her a copy of the order and judgment to be issued hereon and explain it to her in a manner which she can reasonably be expected to understand as required by Mental Hygiene Law §81.16 (e).

The petitioner is directed to settle the order and judgment within thirty days on at least ten days notice to all parties served with the order to who cause and petition or notice of proceeding.

Consistent with the foregoing, it is

ORDERED that a copy of this memorandum and order shall be served together the proposed order and judgment to be noticed for settlement herein, and filed with the Guardianship Clerk of this Court together with the proposed order and judgment, and it is further

ORDERED that the decretal paragraph of this memorandum and order scheduling the control date set to allow the Court to monitor whether the Special Guardian has reported with respect to accomplishing the tasks for which he has been appointed shall be referenced in the recital in order and judgment to be issued herein, and (unless otherwise modified) shall remain in full force and effect upon issuance of the order and judgment, and it is further

ORDERED that counsel for the petitioner appear for a conference before the Guardianship Referee, Jeffrey T. Grabowski, Esq., [(631) 853-5160] on May 26, 2010 at 9:30 A.M. at the Supreme Court, 400 Carleton Avenue, Central Islip, New York, to monitor compliance with the requirement of serving a notice for settlement of a proposed order and judgment, unless prior to that date the conference is cancelled. The conference may be cancelled if the Court has received a proposed order and judgment with a notice of settlement.

It is further

ORDERED that the Guardianship Referee notify the Court immediately if the proposed order and judgment is not noticed for settlement as directed, and it is further

ORDERED that this matter is scheduled for control purposes only on August 18, 2010 to allow the Court to monitor whether the Special Guardian has reported with respect to accomplishing the tasks for which he has been appointed

Dated:04-09-10

MARTHA L. LUFT, A. J. S. C.