Matter of B.C.

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[*1] Matter of B.C. 2011 NY Slip Op 52048(U) Decided on November 10, 2011 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 10, 2011
Supreme Court, Bronx County

In the Matter of Mario Biaggi, Jr., Court appointed Guardian of the Person and Property of B.C., An Incapacitated Person.



91790/09



Attorney for Petitioner A.B.: Julie Stoil Fernandez, Esq.

Guardian: Mario Biaggi, Jr.

Alexander W. Hunter, Jr., J.

A.B., petitioner in the underlying guardianship proceeding, submits a motion requesting that this court make a finding that the action of the guardian to retain counsel to draft and execute a new last will and testament for her father, B.C., (hereinafter "the person") be deemed to be an act inconsistent with the best interest of the person. She further requests that this court deny the guardian's request for nunc pro tunc approval of his payment to Kenneth Stein, Esq., of $8,625.00 and for this court to surcharge the guardian for the payment made to Kenneth Stein, Esq. and deny any application of such disbursement from the assets of the person towards the calculation of the guardian's annual commission. Said requests are hereby denied or rendered moot. Finally, petitioner requests that this court grant her full request for reimbursement of her expenses in traveling and appearing to testify in support of her petition for guardianship of the person, which she claims was for his benefit. That request is granted in part.

A guardianship hearing in this matter was held on November 30, 2009. This court found that the person required the appointment of a guardian of his person and property and petitioner and her sister, L.E., the co-petitioner, nominated Mario Biaggi, Jr., Esq., to serve as the guardian of the person and property. An order and judgment appointing Mr. Biaggi was signed by this court on March 8, 2010.

A.B. submits the instant motion and asserts that the underlying facts in the guardianship proceeding show that it was not in the best interest of the person for the guardian to privately engage an attorney to draft and execute a new will for the person without making prior [*2]application to the court. A.B. then makes allegations similar to those she made in her underlying petition for the appointment of a guardian with respect to the person's alleged inability to take care of himself and his finances and refers to the strained relationship she and her sister have with her step-sister and brother. A.B. argues that the person was found to lack capacity and it is "imprudent" of the guardian "if not outright detrimental" for the person "to make a new last will and testament at this juncture without affording the Court an opportunity to make inquiries as to the testamentary capacity of [the person] and the basis for his decision to make a new will." (A.B. Affidavit, para. 23).

A.B. further states that, in her opinion, her father "may lack testamentary capacity" and "may be subject to undue influence as a result of pressure from his wife and/or stepchildren, to execute a new will." (A.B. Affidavit, para. 24). She argues that the will, executed by the person without any prior request to this court, "...has opened the door to potentially costly and protracted litigation post-mortem regarding [the person's] testamentary capacity and/or his vulnerability to undue influence by his wife and/or step-children upon him while under the care of a court-ordered guardianship." (A.B. Affidavit, para. 25). A.B. claims that Mr. Biaggi did not act in the person's best interest by independently determining to retain counsel to draft a new will and this court should make a finding that the guardian did not act in the best interest of the person through these actions.

Next, A.B. argues that Mr. Biaggi violated NYCRR Part 36 by paying the attorney he retained without first seeking court approval. A.B. takes issue with the fact that Mr. Biaggi paid the attorney he retained, Kenneth Stein, Esq., $8,625.00 to draft a will without first seeking court approval. A.B. objects to permitting the guardian nunc pro tunc approval of the attorney's fees which she claims are "ridiculously exorbitant." (A.B. Affidavit, para. 28). She requests that this court surcharge the guardian the fee for the attorney and that the funds be returned to the person. She also requests that said fee to be excluded as a disbursement from which the guardian would receive compensation in his annual commissions.

Finally, A.B. argues that this court should disregard Mr. Biaggi's recommendation to reduce her reimbursement for expenses incurred in traveling to New York and appearing in support of her petition for the appointment of a guardian of the person. A.B. requested that she be reimbursed $7,553.33 for expenses incurred in traveling to New York and staying in New York. She claims that the trip was "onerous" due to her advanced age (79) and her poor health and obesity. She claims that there was nothing in the trip that was not required because of her age and physical health and "Nothing was mere luxury. Importantly too, the entire trip was for the benefit of [the person's] welfare." (A.B. Affidavit, para. 32). She takes issue with the fact that Mr. Biaggi requested that her expenses be reduced and argues that she "should not be penalized...based on the Guardian's personal determination to reduce my reimbursement" and requests reimbursement in full. (A.B. Affidavit, para. 33).

Mr. Biaggi opposes A.B.'s motion in part. With respect to his retainer of an attorney to assist the person with drafting a last will and testament, Mr. Biaggi argues that he had the [*3]authority pursuant to the order and judgment signed by this court, to retain counsel without having to make a prior request to the court. He points out that the order and judgment specifically notes that the guardian should "afford the I.P. the greatest amount of independence and self determination with respect to property management..." (Exhibit A, p. 4). Mr. Biaggi asserts that he was empowered by the court in the order and judgment, to "retain or employ attorneys or other professionals to assist in the performance of the duties of the Guardian." (Exhibit A, p. 5). Thus, he argues that he had the authority to secure counsel to assist the person with issues affecting his property. He contends that if A.B. has an issue with the will because of undue influence or any other reason, she can challenge the will at the appropriate time post-mortem. He further argues that most of A.B.'s motion attempts to lay a foundation challenging the will and asserts that this is not the forum to do so.

Mr. Biaggi further points out several inaccuracies in A.B.'s affidavit, specifically where she claims that Mr. Biaggi, who served as the court evaluator in this proceeding, noted in his report that the person lacked capacity to understand the gravity of his inability to care for himself and only superficially knew the nature of his assets. Mr. Biaggi argues that he never came to that conclusion and, in fact, stated in his report that the person was able to converse very well with a good amount of clarity on a range of topics. He claims that in his report, he stated that if his recommendation was based solely on his interview with the person, he would question the need for a guardian due to the person's ability to communicate and ambulate satisfactorily. Additionally, in his report as court evaluator, Mr. Biaggi never opined that the person lacked mental or testamentary capacity and despite petitioner's request that this court make a finding that the person lacked testamentary and mental capacity, this court specifically declined to do so.

Mr. Biaggi asserts that the payment of fees to Mr. Stein were reasonable and not grossly excessive as A.B. claims. He asserts that the person has a multi-million dollar estate which he opines required counsel with substantial experience handling estate matters. Mr. Biaggi further contends that Mr. Stein's hourly rate was explained to both him and the person and both found it be acceptable. Mr. Biaggi contends that because he was not subject to Part 36 rules, he made payment to Mr. Stein without seeking prior approval of the court. He acknowledges that he needed prior approval of the court before paying counsel's fees and asserts that he was the one who brought his oversight to the court's attention. He claims that a surcharge is inappropriate and that the fees were justified.

With respect to reimbursement of A.B.'s travel and lodging expenses, Mr. Biaggi asserts that he found A.B.'s claim for reimbursement for five days of hotel lodging as well as $300 transportation expenses from a Yonkers, New York hotel to Bronx Supreme Court, was excessive. He states that A.B. told him she had family in New Jersey and he believes she could have stayed there instead of providing herself a "vacation stay" at the expense of the person. Moreover, the request for reimbursement of $300 for one way transportation from Yonkers to Bronx County is excessive. Nevertheless, Mr. Biaggi claims that the amount of a first class airline ticket in the amount of $2,674.00, which he previously deducted from A.B.'s request for reimbursement of a total of $7,553.33 for her trip to New York, should be reimbursed to A.B. as [*4]the airline ticket was used by her husband who accompanied her on her trip to New York.

The request by A.B. for this court to make a finding that Mr. Biaggi's act of retaining counsel to draft and execute a new last will and testament is inconsistent with the person's best interest, is denied. The arguments made by A.B. in support of that request are nothing but a regurgitation of allegations she made in her petition for the appointment of a guardian for the person. This court found that the person required the appointment of a guardian of his person and property but in its decision after the hearing, dated December 10, 2009, this court noted that the court evaluator, "...believed that the guardian should keep the person involved in making decisions." (Biaggi Exhibit C, para. 7). This court further ordered in its decision dated December 10, 2009 and in the order and judgment, that the guardian should afford the person the greatest amount of independence and self determination with respect to his property management and personal needs.

Because Mr. Biaggi is not subject to 22 NYCRR Part 36, there was no directive in the order and judgment that the guardian first seek permission of this court prior to hiring attorneys, accountants or other professionals to assist him with performing his duties. Moreover, this court never directed, nor did petitioner cite to any authority, to support her position that the guardian was required to return to court for a determination to be made as to the person's testamentary capacity prior to drafting a new will. A.B.'s allegation that the person's drafting of a new will and testament has "opened the door to potentially costly and protracted litigation post-mortem" is purely speculative at this point. Additionally, allegations of testamentary capacity and undue influence are matters that should more appropriately be brought up, if necessary, post-mortem and not at this time before this court.

A.B.'s opposition to Mr. Biaggi's payment to Kenneth Stein, Esq., and her request to surcharge Mr. Biaggi for paying the attorney he retained prior to seeking court approval, is hereby rendered moot. Mr. Biaggi submitted an order with an affirmation of services seeking payment to Kenneth Stein, Esq.,. nunc pro tunc in the amount of $8,625.00 on or about May 4, 2011. However, by order of this court dated July 18, 2011, this court granted payment of fees to Mr. Stein for legal services rendered but only in the amount of $5,215.00. Therefore, A.B.'s application is hereby rendered moot.

Finally, with respect to A.B.'s request that she be reimbursed $7,553.33 for expenses she incurred in traveling to New York for the guardianship hearing, this court first notes that pursuant to Mr. Biaggi's recommendation, this court permitted reimbursement to her in the reduced amount of $4,315.36 plus an additional $600.00 in accounting fees to her daughter who is an accountant. Mr. Biaggi only recommended that one day of lodging in the amount of $132.54 be reimbursed to A.B.. A.B. now seeks reimbursement of the additional $3,2379.94 on the ground that all expenses incurred were necessary and for the benefit of the person. However, in addition to her reimbursement in the amount of $4,315.36, A.B. was reimbursed by order of this court dated July 14, 2011 a total of $74,534.11 for expenses incurred for the renovation, home care, hotel services, transportation, food, medical services, geriatric care and related [*5]matters for the person, his wife and presumably herself.

With respect to that additional $3,2379.94 that A.B. was not reimbursed and is now taking issue with, this court agrees with Mr. Biaggi's finding that $300.00 for one way transportation from Yonkers, New York to the Bronx County Courthouse is excessive. Mr. Biaggi only recommended that she be reimbursed for one day of hotel lodging when she stayed for five (5) days from November 28, 2009 to December 3, 2009. However, of the $74,534.11 A.B. has already been reimbursed from the person's assets, more than $40,000 was for hotel lodging. Additionally, Mr. Biaggi has now recommended that A.B. be reimbursed for a first class airplane ticket in the amount of $2,674.00 for her husband who accompanied her on the trip to New York. A.B. has been reimbursed generously for expenses she claims to have incurred in connection with this guardianship proceeding. This court permits the reimbursement of the airplane ticket for her husband in the amount of $2,674.00. However, reimbursement for hotel expenses for an additional four (4) days when the guardianship hearing was completed in one day and A.B. has already been reimbursed more than $40,000 for hotel lodging, are hereby denied unless A.B. submits an affidavit detailing why a five-day hotel stay was necessary in connection with the guardianship hearing.

This constitutes the decision and order of this court.

Dated:November 10, 2011___________________________

J.S.C.