Matter of P.M.
Annotate this CaseDecided on April 18, 2014
Sur Ct, Dutchess County
In the Matter of the Estate of P.M., Deceased.
2013-932
ELLEN L. BAKER, ESQ.
Guardian Ad Litem
McCabe & Mack, LLP
63 Washington Street
Poughkeepsie, New York 12601
DAVID GUBITS, ESQ.
Guardian Ad Litem
Jacobwitz & Gubits, LLP
P.O. Box 367
Walden, New York 12586
DANIEL J. McCABE, ESQ.
Attorney for the Estate
42 Catharine Street
Poughkeepsie, New York 12601
ERIC T. SCHNEIDERMAN, ESQ.
Attorney General of the State of New York
120 Broadway
New York, New York 10271
James D. Pagones, J.
In this contested probate proceeding, decedent's daughter C.M., who has not yet answered or filed objections to the [*2]petition to probate the will, has filed a motion seeking accommodations under the Americans with Disabilities Act. The accommodations are as follows: (1) she cannot sit and/or stand for more than twenty (20) minutes at a time, she needs to able to lie on a small raft on the first bench with her own pillows and towel rolls for her neck and back and she seeks to be able to pace, sit and/or stand; (2) she needs telephonic responses from the court; (3) she needs extra time to submit/consider all court documents; (4) a pro bono attorney; (5) to submit any/all documentation via email and the same being un-notarized; (6) at the time of trial, being able to stay in the home in Poughkeepsie which her parents owned; (7) a jury trial; (8) she needs to be called in addition to having things mailed, emailed and/or sent certified mail; (9) allowing her to email or fax documents to parties; (10) adjournment of the first hearing; (11) she needs to have time to study documents; (12) document discovery; (13) allowing her to take notes in court via computer; and (14) requesting that an action be started against her father's insurance company.
The following papers were considered:
Affidavit (Motion)1
Affirmation in Response2
Affidavit in Response-Affirmation of Service3-4
Affidavits in Response (2)5-6
Upon the foregoing papers the motion is decided as follows:
The Americans with Disabilities Act (ADA) of 1990 is a federal law prohibiting discrimination against individuals with disabilities in employment, public accommodations and government services. Courts in New York State are covered under Title II of the ADA (New York State Unified Court System, http://nycourts.gov/accessibility/accessToTheCourts.shtml [accessed April 15, 2014]).
The New York State Unified Court System is committed to fostering compliance with the Americans with Disabilities Act and to providing services, programs and activities in a way that assures accessibility for all users of the courts, including qualified individuals with disabilities (id.).
As a public entity, a court must "take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communication with others" (28 CFR §35.160[a]). The court must furnish appropriateauxiliary aids and services where necessary to afford an individual with a disability an equal opportunity
to participate in and enjoy the benefits of a service, program, or activity conducted by the court (see 28 CFR §35.l60[b][1]).
It is understood by this Court that C.M. has an anxiety disorder, a diagnosis shared with the members of this chambers, [*3]as well as the Surrogate Clerk's Office at every opportunity she has communicated with the Court. Thus, in an effort to accommodate her and ensure that communications with Ms. M are as effective as communications with others, the Court will now address every branch of her motion.
The first branch of Ms. M's motion is granted. Ms. M will be allowed to lie on a small raft on the first bench of the courtroom. Ms. M shall provide her own small raft, pillows and towel rolls. Additionally, Ms. M may pace, sit and/or stand in the first row of the courtroom. If Ms. M intends to appear, she is directed to provide this Court's Chief Clerk with Twenty-Four (24) hours notice of her appearance. Failure to do so, may result in the Court's inability to satisfy Ms. M's request for ADA accommodations.
The second branch of C.M.'s motion, seeking telephonic responses from the Court, is also granted to the extent that Court personnel will provide a telephonic response to Ms. M. However, in the event that Ms. M begins cursing, threatening, screaming or otherwise harassing court personnel, as she has done on a host of previously documented occasions, communications will cease and all future responses will be in written form.
The third branch of Ms. M's motion is granted to the extent that Ms. M will be afforded reasonable time necessary for the review of court documents. In the event that Ms. M feels that she has received inadequate time to review a document or documents, an application can be made to the Court to extend her time to do so.
The fourth branch of the motion is denied. A Guardian Ad Litem, Ellen Baker, Esq., had been appointed in this action pursuant to SCPA §402(2) on November 21, 2013. This order was amended on December 5, 2013, at the request of Ms. M, and Ellen Baker, Esq. was directed to remain the Guardian Ad Litem solely for the purpose of reviewing, investigating and reporting to the Court her findings as to the validity of the purported Last Will and Testament of P.M., dated September 13, 2013 and the status of jurisdiction. At that time, Ms. M was free to be self-represented or obtain legal counsel. On March 5, 2014, the Court appointed David B. Gubits, Esq. as Guardian Ad Litem for C.M. for the limited purpose of investigating and reporting to the Court whether objections should be filed in this matter. Both appointments were made with the consent of the estate's counsel. While Ms. M has consistently insisted that a pro bono attorney represent her in this matter, she has failed to demonstrate the requisite right to said assignment (see SCPA §407). Accordingly, this branch of Ms. M's motion is denied.
The next branch of C.M.'s motion seeks to submit any/all documentation via email and the same being un-notarized. The court must deny this branch of the motion as the submission of [*4]all documents via email will create an undue administrative burden upon the Surrogate's Court office. Further, the statutory requirement that documents be notarized, to be in admissible form, need not be waived to accommodate Ms. M's disability (see generally CPLR §2309).
Ms. M next seeks that the Court allow her to stay in her deceased parents' home if and when a trial were to occur. The Court sees no right in law or fact to provide this "accommodation" to Ms. M. The accommodation sought is personal in nature and not necessary to allow Ms. M to meaningfully participate in the proceedings before the Court.
Next Ms. M seeks a jury trial. Pursuant to SCPA §502 "[a] party is entitled to trial by jury, if duly demanded, in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right of trial by jury, in any proceeding for the probate of a will in which a controverted question of fact arises..." However, each respondent demanding a jury trial must do so in his or her answer or objections (see SCPA §502[2][a]). As C.M. has not filed her objections, this branch of her motion is denied as premature (id.).
The eighth branch of Ms. M's motion, i.e. that she needs to be called in addition to having things mailed, emailed and/or sent certified mail, is simply repetitive of the second branch of her motion, and thus it is granted to the extent that the second branch of the motion was granted.
The next branch of C.M.'s motion seeks that the Court allow her to email or fax the parties. The provision of this remedy would violate the statutory rights of the other parties to this proceeding and thus must be denied. Service of papers in an action is governed by CPLR 2103, which specifically delineates how papers in an action are to be served (see SCPA §102; CPLR 2103).
The branch of the motion seeking an adjournment of the first hearing, scheduled for April 24, 2014 at 11:00 a.m., is denied.
The eleventh and twelfth branches of C.M.'s motion seeking time to study documents and document discovery, are denied as premature. Ms. M may seek document disclosure via her objections, if and when they are filed.
The thirteenth branch of Ms. M's motion which seeks to allow her to take notes during court proceedings, via computer, is granted to the extent that Ms. M may take notes on her personal computer at any and all future court proceedings.
The fourteenth and final branch of C.M.'s motion requests that an action be started against her father's insurance company. This request is denied as the Surrogate's Court is without authority to act on behalf of the decedent to prosecute a claim against his insurance company. [*5]
The parties are directed to appear on April 24, 2014 at 11:00 a.m. Adjournments are only granted with leave of Court.
The foregoing constitutes the decision and order of this Court.
Dated:April 18, 2014
Poughkeepsie, New York
ENTER
_______________________________
HON. JAMES D. PAGONES, S.C.J.
TO:C.M.
New Jersey
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