Matter of Mitchell

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[*1] Matter of Mitchell 2016 NY Slip Op 50853(U) Decided on June 3, 2016 Supreme Court, Kings County Pesce, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2016
Supreme Court, Kings County

In the Matter of Mary Mitchell. An Incapacitated Person.



100163/14



Adam C. Wilner, Esq. Pro Se Movant

Successor Guardian Property of Mary Mitchell

232 Madison Avenue, Suite 909

New York, New York 10016

(212) 953-2300

Shulman Law, PLLC

Co-Counsel for Respondent George Shadoian

190 Willis Avenue

Mineola New York 11502

(516) 739-1020

Law Office of David E. Miller, LLC

Co-Counsel and trial counsel for Respondent George Shadoian

427 Elmwood Avenue,

Maplewood, New Jersey 0704

(917) 405-8096
Michael L. Pesce, J.

The following papers numbered 1 to 12 read herein: Papers Numbered



Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

Affidavit (Affirmation)

Other Papers: Memos of Law 3,4,5,6

Order to show cause dated June 16, 2014 and Petition 7,8

Verified Cross-Petition and attachments 9

Verified Answer 10

Court Evaluator Report and attachments 11

Decision dated August 25, 2014 12

Upon the foregoing papers and the hearing held on February 25, 2016, March 8, 2016 and March 10, 2016, Successor Property Guardian, Adam C. Wilner, Esq. moves for a money judgment, pursuant to MHL §81.43 and General Obligations Law §5-1510(2), against George Shadoian for monies wrongfully obtained from Mary Mitchell (IP). The motion is granted for [*2]reasons herein.



PROCEDURAL HISTORY

This matter was commenced by Order to Show Cause (OSC) and petition verified June 3, 2014 which were filed on June 13, 2014 by the IP's sister and now personal guardian, Eileen Labriola. The petition alleged that George Shadoian had exploited his position as the IP's attorney-in- fact and as her health care proxy. During the time George Shadoian oversaw the IP's affairs, the IP had repeated hospitalizations due to neglect, dehydration, and infections brought on by poor hygiene. The OSC requested a Temporary Guardian and Temporary Restraining Order against respondent George Shadoian.

The petition further alleged that the then 78 year old IP was in Coney Island hospital and that the hospital would not release the IP to George Shadoian, the then health care proxy and attorney-in-fact of the IP, because the hospital believed that he would not arrange for the type of home care or supervision that the IP needed for a safe discharge plan. On June 16, 2014, this Court signed the OSC and appointed Stephen Donaldson, Esq. as Temporary Property Guardian, Mental Hygiene Legal Services as Counsel, and Joseph Dirks, Esq. as Court Evaluator. Mr. Shadoian hired counsel, filed an answer to the initial petition, and filed a cross petition. The cross-petition sought to have Ms. Labriola's petition dismissed and to have her bear the costs of the proceeding, or in the alternative to have himself appointed as the IP's Personal Needs and Property Management Guardian.

The guardianship hearing was held and the Court found, by clear and convincing evidence, that the IP needed a Personal Needs and Property guardian appointed. Mr. Shadoian's cross-petition was denied. The IP's health care proxy and power of attorney both of which named George Shadoian as agent were voided.

With a decision and order dated August 25, 2014, the Court continued temporary restraining orders against George Shadoian and additionally restrained him from contacting the IP to prevent manipulation of the IP by Mr. Shadoian during the time the Property Guardian would be investing the IP's finances. With an order and judgement dated August 27, 2014 the Court appointed Eileen Labriola, the petitioner and only sibling of the IP, as Personal Needs Guardian and Stephen A. Donaldson, Esq., who had been appointed as Temporary Property Guardian, both of whom qualified as guardians and obtained their commissions on September 16, 2014. On November 7, 2014, the Property Guardian sought to be discharged, and on February 19, 2015, the Court appointed Adam Wilner, Esq. as successor Property Guardian, who brought this discovery and turnover proceeding.

THE TURNOVER PROCEEDING

Prior to the hearing on the turnover proceeding, the Property Guardian and the defendant engaged in disclosure of documents. George Shadoian was deposed. At the hearing, numerous documents were placed into evidence, and testimony from three witnesses was elicited.

Movant's first witness, Ms. Labriola, the IP's sister and Personal Needs Guardian, testified that she grew up as the youngest child in her four member household in the Bronx. Although Ms. Labriola married and left her parents' home, the IP never moved out. To be closer to Ms. Labriola, who was living in Brooklyn, the IP and her mother, bought a condominium apartment together in Brooklyn. The IP began living on her own only after her mother passed away in 1988.

Despite an IQ of 160 and a graduate degree, the IP endured a 15-year unemployment stretch until she started to work for New York City at a middle level job. The IP had a very limited social life, with few or no friends. The IP never spent any money, except on necessities, had no credit card, and did not even own an ATM card. The IP never brought anyone gifts when invited as a guest at dinner, or at Christmas time, or on birthdays. The Court pointedly asked Ms. Labriola if the IP was ever generous with any one.

The Court: She has never displayed any generosity towards you?

The Witness: No, no. Not only to me, to anybody,

The Court: Okay. That was my next question. Were you aware of your sister displaying generosity towards, let's say a neighbor?

The Witness: Not even the church, because I had asked her, she was religious.

The Court: That was my next question, church or not-for-profits?

The Witness: Never. I said, You (sic) must give envelopes to the church in case you need something. That was what it was, and she never did. She never joined the church.



The Court: Was she active with NYU alumni

or —

The Witness: No.(Tr. 2/25/16 pp.17-18)

Ms. Labriola testified that she first started to notice signs of dementia in the IP some time around 2008. For instance, the IP would inexplicably forget appointments to meet with Ms. Labriola or become lost when trying to visit Ms. Labriola in her apartment, that the IP had previously visited. Ms. Labriola encouraged her sister to go to a neurologist, but the IP was uninterested.

Ms. Labriola testified as to the IP's several hospitalizations and the IP's unrelenting decline in cognitive function.

On October 19, 2010, the IP was admitted to Coney Island Hospital with a fractured hip. During her hospital admission, the IP was unable to explain coherently how she sustained her injury. Notes throughout the hospital record indicate that she was unable to make decisions about her discharge plan and suffered short-term memory impairment.

The IP appointed Ms. Labriola her health care proxy on November 2, 2010, and Ms. Labriola in conjunction with the hospital staff discharged the IP to Kateri Residence in Manhattan. Around this time Ms. Labriola went to the IP's apartment and found it in deplorable condition. Ms. Labriola cleaned the dwelling thoroughly and purchased replacement linens, towels, etc. The IP signed all the checks to reimburse her sister for the purchases, and the IP never questioned a single purchase.

The Court: Did she understand when she signed the checks, what the checks were for?

The Witness: I don't know. She never questioned them.

The Court: Okay. She never questioned them?

The Witness: No

The Court: No?

The Witness: No

The Court: So basically she trusted you?

The Witness: Yeah.

The Court: And she would sign the checks?

The Witness: Yes

Q. If you stuck a check payable for million (sic) dollars to yourself, a million dollars that she didn't have, would she sign it?

A. Sure. (Tr. 2/25/16 p. 39)

Ms. Labriola also testified that during her visits with the IP at Coney Island Hospital in 2010, the IP's hospital roommates expressed concern that George Shadoian would have the IP sign papers.

A. ...And I was told by, there was (sic) four people in the room, and they said, which I didn't understand and I didn't understand and I didn't even, they said that he had signing things even then.

Mr. Miller: I'm sorry, say that again? They said what?

The Witness: That he had her signing papers even then, at that.

The Court: Who said that?

The Witness: These were the other patients that didn't like him.... (Tr. 2/25/16 p. 43)

In addition to the above, after the IP was discharged from Coney Island Hospital to the Kateri Residence for rehabilitation, Ms. Labriola discovered that her sister had retained an attorney, expert in the field of elder law and that she had executed a power of attorney naming George Shadoian as her attorney-in-fact and as her health care proxy. The power of attorney specifically did not allow the agent to transfer the IP's assets to himself, nor did it allow gifting.

At or around this time, Ms. Labriola received a telephone call from George Shadoian threatening that he would call the New York Post, unless Ms. Labriola returned the keys to the IP's apartment. (Tr. 2/25/16 p.49) Saddled with her own serious health issues and her disappointment at having her impaired sister appoint a relative stranger as power of attorney and making him health care proxy, Ms. Labriola decided to limit her involvement in the assistance of her sister. Other than a thwarted attempt to speak over the phone, Ms. Labriola did not again communicate with her sister until 2013.

In 2013, New York City Adult Protective Services (APS) received a report of suspected elder abuse or neglect of the IP. As part of its investigation, APS performed a home visit which resulted in the IP being again admitted to Coney Island Hospital. APS reached out to Ms. Labriola as part of the investigation, and Ms. Labriola and her sister resumed phone communication. On one occasion when she called the IP at the hospital, George Shadoian cut short their conversation. Soon thereafter, unbeknownst to Ms. Labriola or any other of the IP's relatives, George Shadoian changed the IP's home telephone number. Mr. Shadoian did not share the IP's new telephone number with the IP's sister or anyone else.

In early 2014, APS again received a report of suspected abuse or neglect of the IP. Following procedure, APS again contacted Ms. Labriola. APS informed Ms. Labriola that APS had the IP brought to Coney Island Hospital as a result of its home visit. Ms. Labriola called her sister in the hospital, but the telephone contact was terminated when George Shadoian took the phone away from the IP and told Ms. Labriola that the IP no longer wished to speak to her.

The next time Ms. Labriola tried to telephone her sister was in May of 2014 to let the IP know of the election of a new Pope, because the IP loved the church. Ms. Labriola discovered that the IP's phone had been disconnected. Ms. Labriola then contacted the case worker who had been assigned to the IP's APS case in 2013. The case worker gave Ms. Labriola contact information for the president of the co-op board of the IP's building. A visit was arranged between the co-op president and Ms. Labriola in the lobby of the co-op, and the two women were joined by a third woman. The three ladies went to the IP's apartment, rang the bell, and banged on the door, but there was no answer. The ladies called for an ambulance, and the ambulance service called the fire department to gain access to the apartment. Using the third woman's apartment, the fire department gained access to the IP's apartment through the fire escape, allowing the three ladies access to the apartment.

The IP was found alone and confused. She was unhygienic, covered with bed sores, and malnourished. The apartment was disorganized, and the IP's bedding was stained black with dirt. There was scant edible food in the refrigerator. There was no phone, no cable, and no alert pendant.

The fire department's "Prehospital Care Report Summary" (Report), in the section titled Narrative History Text, reads:

UPON ARRIVAL FOUND 78 Y/O F AMBULATORY ALONE IN APARTMENT, ALERT BUT CONFUSED. PT LIVES ON HER OWN, BUT PT IS UNFIT TO LIVE ALONE. LIVING CONDITIONS ARE POOR AND UNMANAGED; PT MALNOURISHED (Plaintiff's Ex. 4)

The Report also remarks that the Fire Department personnel did not have the IP sign any forms, because the IP was "Mentally Incapable-Other," and the Report in its comments section notes "dementia." The IP was taken to Coney Island Hospital by ambulance.

While at the hospital the IP's attending physician, Marina Margulis, M.D. ordered several psychiatric consultations. On May 5, 2014, Petia Papazoglou Trifonova, N.P. performed a psychiatric assessment to determine the "Capacity" of the IP. (Plaintiff's Ex. 5)

Under the heading "Recommended disposition", Petia Papazoglou Trifonova's consultation report states "Patient Lacks Capacity" and that the primary diagnosis is "Senile dementia, uncomplicated". The "Impression" section of said report reads: "Pt does not have capacity to make a decision regarding her care. Cognitive, impairment, advanced stage. Social services need to be involved for the safety of the Pt." The report states that an assessment of the [*3]IP's suicidal ideation could not be made due to the IP's "advanced stage of dementia." (Plaintiff's Ex. 5)

On July 14, 2014, Ellen Nudelman, M.D., performed another psychiatric assessment. Dr. Nudelman's consultation report states that the IP suffers from an "inability to care for self." Dr. Nudelman's diagnosis is "Dementia, r/o with anxiety." On July 18, 2014, Dr. Nudelman performed a psychiatric re-evaluation of the IP "due to episodes of agitation and paranoid thoughts." The July 18, 2014 report states the IP's thoughts were illogical, that she did not know her home address, and that she was unable to perform serial threes and sevens. Dr. Nudelman noted that IP had "Limited insight and judgment." The IP's diagnosis was "Dementia, severe." (Plaintiff's Ex. 5)

Over the objection of George Shadoian's counsel, Ms. Labriola testified again that during this hospitalization she received further reports that Mr. Shadoian had closed the curtains around the IP's hospital bed and had her signing documents.



A ... And they would call me up from Coney Island Hospital and say, he's closing the curtains again and he has her signing things and, and (sic) they would go over and open the curtain.

QWhen you say he, you mean George?

AYes.

Mr. Miller:Objection. Hearsay

The Court:Yes. Sustained. Were you told or?

The Witness: I think that was a patient's, there's a patient's rep or something.

The Court:And when did the patient — do you know that person's name?

The Witness: I don't, but I could find out.

The Court:And when did this — can you pinpoint the time, the date that—

The Witness: It was sometime in the two-months that she was there; and, they told him, do not close the curtain because they have to see what, you know, what was going on. (Tr. 2/25/16 p. 60)

Social Services at Coney Island Hospital held a meeting attended by doctors, a representative from the social work department, George Shadoian, and Ms. Labriola. The IP's physical safety was the focus of the meeting. (Tr. pp. 64-65) The outcome of the meeting was that Coney Island Hospital refused to discharge the IP to George Shadoian's care.

As a result of the guardianship proceeding, the IP did not return to live in the community as George Shadoian as power of attorney had wished, but instead was placed by her co-guardians into an assisted living facility at the cost of $9,000.00 plus per month. Ms. Labriola feels the placement is best for the IP who, despite her comfortable arrangements, suffers from the progression of dementia and is fearful, often voicing concern that she will go to jail.

Prior to the execution of the power of attorney in 2010 making George Shadoian the IP's attorney-in-fact, Ms. Labriola would sometimes help her sister with her banking. In 2010, Ms. Labriola saw a number of checks made out to George Shadoian for $2,000.00 each. Ms. Labriola asked her sister what these checks were for, and the IP said she couldn't remember.The Court Evaluator, Joseph Dirks, Esq. informed Ms. Labriola that a great deal of money had purportedly been gifted by the IP to George Shadoian.

Ms. Labriola testified that prior to the IP designating George Shadoian as power of attorney and health care proxy in 2010, the IP had never mentioned George Shadoian to her while the two worked in the same office or after the IP retired, when the two sisters were close, speaking by telephone daily. Ms. Labriola also testified that her sister never had any romantic relationship with Mr. Shadoian or anyone else.

The movant, Adam Wilner, Esq., then called George Shadoian, the respondent herein, to the stand. Mr. Shadoian testified that he was a co-worker of the IP , but that the two had never [*4]socialized outside the work-place, never had lunch together, and never had much of a relationship. The two were never romantically involved. Mr. Shadoian testified that he would drive to the IP's apartment after work nearly every night, and telephone records reflecting scores of telephone conversations between the two were introduced into evidence. For example, between February 17, 2011 and March 16, 2011, more than 60 telephone calls between the IP and George Shadoian were reflected in cell phone records, listed under Mr. Shadoian's daughter's name. (Plaintiff's Ex. D)

Mr. Shadoian testified about all he did for the IP. He testified that he had doctors and social workers come to the IP's apartment to conduct examinations of her. However, Mr. Shadoian never shared the IP's medical history with any of the providers who came to the IP's apartment, to wit: her multiple diagnoses of dementia, her multiple hospitalizations, or the APS home visits to the IP's apartment that resulted in the hospitalization of the IP. (Tr. 3/10/16 p. 9)

Mr. Shadoian also testified that he oversaw the IP's social life which was very limited. Yet he changed her telephone number, but never shared the IP's new telephone number with her sister or her other relatives. Mr. Shadoian also testified that he placed a large sign that read "Call George" on the inside portion of the IP's front door, because he wanted the IP to call him if someone knocked on the door. He especially did not want the IP to allow APS into her apartment because every time APS visited, he said APS would have the IP taken to the hospital by EMS. He testified that the purpose of the sign was to keep the IP out of the hospital. Despite testifying that the IP would open the door for anyone, he refused to acknowledge that she was easily influenced.

Mr. Shadoian's testified how he oversaw the IP's property. As power of attorney, he had the IP's bank statements mailed to his home. He claimed that when the IP wrote him checks totaling more than $120,000.00, which was to be used to purchase a house for himself in Normandy and to bankroll a display of his art works in Paris, France, he was unconcerned that these "gifts" exhausted approximately half of the IP's then-known assets. He also said that the IP was neither frugal nor a spendthrift and that he did not influence the IP to make a will nor did he know what the IP planned on leaving him in this will.

Mr. Shadoian testified that he never urged the IP to help him defray the expenses of exhibiting his art in Paris or to buy him a home in Normandy so that he could live closer to his daughter, but he did admit that he received the following amounts as gifts from the IP:



1. In January 2012, Mr. Shadoian received a $10,000.00 check signed by the IP which, Mr. Shadoian said, the IP gifted to him to defray costs of his visit to France to see his daughter.

2. In April 2012, Mr. Shadoian received a $100,000.00 check signed by the IP which, Mr. Shadoian said, the IP gifted to him so that he could buy a house in Normandy to be closer to his daughter.

3. In June 2012 Mr. Shadoian received a $7,000.00 check signed by the IP which, Mr. Shadoian said, the IP gifted to him for reasons unknown to himself.

4. In September of 2012, Mr. Shadoian received $5,000.00 check signed by the IP which, Mr. Shadoian said, the IP gifted to him to defray the costs of his art exhibit in Paris.

Mr. Shadoian admitted that he never bought the house in Normandy and that instead of returning the money to the IP, he spent the money to defray his own living expenses. He never told the IP that he didn't buy the house in Normandy.

Mr. Shadoian denied prompting the IP to draft a Last Will and Testament (Will). He testified that he did not know she was going to name him as heir to her residuary estate, nor that he would be appointed as her executor. He said that the IP must have been inspired to draft her Will as a result of reading a union newsletter describing the free legal services. Finally, as the IP's named executor, he gave the Will to his nephew to bring to Iran and to leave it there with Mr. Shadoian's deceased wife's family, claiming Iran was safest place to leave the Will. He also testified that he didn't believe that the Will could be safely mailed out of Iran, and that he was therefore unable to deliver the Will to the IP's Property Guardian

Defendant's only witness was Mr. Vincent Gagliardi Esq., the attorney from the IP's free [*5]legal services, District Counsel 37 Municipal Employees Legal Plan (Plan), who drafted the IP's Will. Mr. Gagliardi graduated from Columbia Law School in 1973 and earned a Master Degree in Tax from New York University. He worked for Bronx Legal Services and testified that he has been a supervisor at the Plan, since 1977.

Mr. Gagliardi explained the process by which a municipal employee would use the legal services. The employee calls the Plan and requests a Will. The Plan's screening department then determines if the person qualifies for its services and if she does, mails the employee a questionnaire form. When the employee returns the form, a file is opened. Because of a significant backlog at the Plan's office, the IP's file was sent to Mr. Gagliardi several months after she mailed back her completed questionnaire. Mr. Gagliardi assigned the Will-drafting to the only other attorney in the Plan who drafted Wills, Diane Bruce. As a result of hurricane Sandy, there was delay in getting the Will completed. Ms. Bruce then retired, and the task of drafting the IP's Will fell to Mr. Gagliardi.

Sometime in early 2013, Mr. Shadoian telephoned the Plan and spoke to Mr. Gagliardi and, on behalf of the IP, asked that the Will be completed. Mr. Gagliardi explained that he would have to telephone the IP so that he could speak with his actual client. Mr. Shadoian told him not to bother, because the IP would only answer the telephone if she knew who was calling. The two then set a date and time for Mr. Gagliardi to telephone the IP.

Mr. Gagliardi called at the appointed date and time. The IP answered the phone, and the two spoke. Although Mr. Gagliardi could not recall his conservation with the IP, it apparently was satisfactory, and he drafted the IP's Will. Mr. Gagliardi was unconcerned of Mr. Shadoian's involvement in the process. Mr. Gagliardi saw no problems in sending a copy of the IP's Will to Mr. Shadoian's attorney, and at the hearing Mr. Gagliardi saw no problems in placing attorney-client conversations and communications into the record, despite attorney-client privilege.

On the Will questionnaire, the IP indicated that some of her assets had been sent to the State as unclaimed funds, but it did not occur to Mr. Gagliardi that the IP did not know the extent of her estate. The IP had advised the Plan that the approximate value of her assets, excluding her co-op apartment, was $66,000.00. However, the IP's liquid estate at the end of 2014 was, in fact, some $838,000.00 in various accounts most of which existed in 2013.

On July 13, 2013 the IP, accompanied by Mr. Shadoian, executed her Will, and Mr. Gagliardi supervised and witnessed said execution. Mr. Gagliardi saw no obvious mental deficits in the IP, and the entire process took no more than a half hour. Mr. Gagliardi explained that although he would usually exclude a named beneficiary under the Will during the Will's execution, he might not have done so when the IP signed her Will because the Plan was in cramped temporary quarters, not in its usual office, during downtown Manhattan's recovery from Hurricane Sandy.

Mr. Gagliardi seemed genuinely surprised to hear that the IP had multiple diagnoses of dementia and hospitalizations due to self neglect. He likewise seemed disconcerted to learn that the Mr. Shadoian was "gifted" over a hundred thousand dollars from the IP the year before the Will was signed.

DISCUSSION

Respondent argues in his post trial memorandum, that this Court should find that the $122,000 in gifts to Mr. Shadoian were proper, because: 1) it is movant's burden to show that the IP was suffering from mental infirmity at the time the gifts were made and that movant had offered no proof as to the IP's debilitated mental status on the specific dates the checks were issued ( See Lee v. Bank of NY, 294 AD2d [2d Dept 2002]; Gala v. Magarinos, 245 AD2d [2d Dept 1997]) and 2) despite the fact that the gifts were made to a fiduciary, there is nothing in the record to indicate that the gifts resulted form undue influence or that they were based on anything other than gratitude, affection and esteem. (See Matter of Hedges, 100 AD2d 586, [2d Dept 1984]).

Movant concedes that, typically, the burden of proving undue influence rests upon the party alleging it. (See Allen v. La Vand , 213 NY 322, 323 [1915]). Movant, however, advances [*6]the convincing and well established argument that if the donee of a transaction has a fiduciary or confidential relationship with the donor, the burden of proof shifts to the party receiving the benefit to prove by clear and convincing evidence that the transaction was fair and free of undue influence. (See Matter of Connelly, 193 AD2d 602 [2d Dept 1993]). Movant cites that this axiom was just reiterated by the Court of Appeals in Matter of Aoki, 27 NY3d 32 (2016) , where the court shifted the burden to the grantee that held a fiduciary relationship with the grantor.

However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Aoki, supra, 39 citing Matter of Greiff, 92 NY2d 341, 345 [1998]).

It is uncontroverted that at the times of the gifts, to wit: January 23, 2012, April 24, 2012, June 15, 2012 and September 19, 2012, Mr. Shadoian was in two fiduciary relationships with the IP. He was the IP's attorney-in-fact and her health care proxy, and therefore it is Mr. Shadoian's obligation to prove that the IP freely and voluntarily gifted $122,000.00 to him. Under New York law, it is Mr. Shadoian's burden to prove that the IP made $122,000.00 of cash gifts to him knowingly and voluntarily, without the taint of undue influence.

To prove that the IP freely and knowingly made these gifts, Mr. Shadoian called Mr. Gagliardi to testify. Mr. Gagliardi's testimony did nothing to prove that the gifts were voluntary. He spoke to the IP briefly over the phone and met her one time for 30 minutes while the IP was in the company of Mr. Shadoian. Additionally, when Mr. Gagliardi telephoned the IP and she answered the phone and the two spoke, we do not know if Mr. Shadoian was present and influencing the IP. Mr. Gagliardi's testimony was too threadbare to carry much weight. He spent so little time with the IP that his impression cannot be given much weight, especially in light of the fact that Mr. Gagliardi was never informed that APS had intervened in the IP's life, that the IP had been prescribed Alzheimer medication, that she had been hospitalized on several occasions due to her own and Mr. Shadoian's neglect.

Moreover, Mr. Gagliardi failed to make even elementary inquiries as to the actual size of the IP's estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the Will. As to the validity of the Will, it will have to be decided on another day in another court, if the Will ever arrives back in the United States from its sojourn in Iran.Also as Mr. Shadoian's case, two letters, purportedly from medical personnel, placed into evidence by Mr. Shadoian, stating the IP was fine are likewise given little to no weight. These providers were unaware of IP's hospitalizations or history with APS, and their statements are devoid of any medical basis for their declarations.

FINDINGS

Other than Mr. Gagliardi and medical providers found by George Shadoian, nearly everyone who came into contact with the IP and Mr. Shadoian was disturbed by their relationship: the IP's roommates in the hospital, hospital staff who refused to discharge the IP to Mr. Shadoian's care, the IP's sister, all of the Court's appointees, and even the IP's neighbors. The hallmark of Mr. Shadoian's relationship with the IP was his exercise of undue influence over her. He put in place methods to limit the contacts between the IP and the outside world. His intrusion into her life borders on obsession, not with the welfare of the IP, but with the attainment of control over all aspects of her life.

This Court has assessed Mr. Shadoian's credibility and finds it severely wanting. His testimony was evasive, self-serving, and inconsistent. This Court rejects his account that the IP, a woman who never gave a Christmas gift to her sister, never donated to her beloved church, a woman without a credit or ATM card, would suddenly become Mr. Shadoian's personal patron, financing his trip to Paris to exhibit his art and personal benefactor who paid for his trips to France to see his daughter, and gifted $100,000.00 for the alleged purpose of purchasing a house in Normandy.

This Court has assessed the credibility of Ms. Labriola and found her completely credible [*7]in her testimony. The picture of the IP as painted by Ms. Labriola, who has known her the whole of their lifetimes, is of a woman, who despite extraordinary intellectual gifts, never left her parents home, had no friends, had little to no social life, had a limited work life, and was financially victimized. As Ms. Labriola testified, the IP would sign anything, if it was put in front of her.

NOW, upon all of the foregoing and due and deliberate consideration, it is hereby;

ORDERED, that Adam Wilner's motion, as Property Guardian of Mary Mitchell, is granted to the extent that there shall be a money judgment against George Shadoian in favor of Adam C. Wilner as Successor Property Guardian of Mary Mitchell in the principle sum of $122,000.00 plus costs and disbursements as designated by the County Clerk, upon presentation of a bill of costs, with interest at the rate of 9% (nine percent) to be calculated from the date of this decision (CPLR § 5001); and it is further sua sponte

ORDERED, that George Shadoian his agents, assigns, attorneys, heirs, proxies, or any other person or entity acting on his behalf or in concert therewith are hereby enjoined and restrained from transferring, using, spending, and hypothecating any of his assets, or those assets in which he claims to have a beneficial interest, for any purpose other than necessaries until a final Judgment paying over the Judgment amount to Adam Wilner as Successor Property Guardian of Mary Mitchell, an incapacitated person, is satisfied; and it is further

ORDERED, that this Court sua sponte finds relations between the USA and the state of Iran have changed since the lifting of the embargo and George Shadoian shall make all efforts to have the Will delivered to Adam Wilner and George Shadoian shall report to the Court within 30 days of this decision and order, of his progress; and it is further

ORDERED, that movant shall serve a copy of this decision and order with notice of entry upon all parties noticed in the OSC within 5 days of entry hereof; and if is further

ORDERED, ADJUDGED AND DECREED, that Adam Wilner as Guardian of the Property of Mary Mitchell of 232 Madison Avenue, Ste 909, New York, New York 10016 to have judgement and recover from George Shadoian of 41-41 43rd Street, Apartment E19, Sunnyside, New York 11104 in the amount of $122,000.00 plus______________ as and for costs and disbursements, upon presentation of a bill of same as calculated by the Clerk of the Court, plus interest at the rate of 9% from the date of this decision and order in the amount of _________________ for a total sum of ________________ and petitioner/movant has execution thereof; and it is further

ORDERED, that upon the submission of an affirmation of services Adam Wilner's legal fees shall be set by the Court in a subsequent order and judgment.

This constitutes the decision and order of the court.



E N T E R: Forthwith

Dated: June 3, 2016

Hon. Michael L. Pesce

J. S. C.