Matter of Govan W.

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[*1] Matter of Govan W. 2019 NY Slip Op 50650(U) Decided on March 5, 2019 Court Of Claims Wan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2019
Court of Claims

IN THE MATTER OF Govan W. Incapacitated Person.



XXXX/2018



Justice Wellington (attorney for the petitioner, NYC Human Resources Administration, Office of Legal Affairs)

Douglas Acosta (attorney for Govan W.)

Richard Schager (court evaluator)
Lillian Wan, J.

In this guardianship proceeding, for the reasons set forth below, the application of Richard Schager, Esq., for a fee of $14,232.00, at a rate of $300.00 per hour, to be paid by the petitioner as compensation for serving as the court evaluator in this matter is denied.

Mr. Schager was appointed as court evaluator by the Hon. Shawn T. Kelly on September 13, 2018, based on the Order to Show Cause and Verified Petition brought by the New York City Department of Social Services (DSS) for the appointment of a Guardian of the personal needs and property management of Govan W. On November 8, 2018, this Court conducted an Article 81 hearing on this matter, and granted the petitioner's relief, finding Mr. W. to be an incapacitated person, requiring the appointment of a guardian. The Court appointed a Community Guardian for the personal needs and property management of Mr. W.

On October 16, 2018, court evaluator Richard Schager, Esq., filed an Affirmation in Support of Application for Fees and Disbursements, along with a proposed order, in the amount of $37,645.50, at a billing rate of $795.00 per hour, however Mr. Schager requested that the Court approve a lesser sum in the amount of $14,232.00, at a billing rate of $300.00 per hour plus $42.00 in disbursements.

On December 11, 2018, petitioner served a proposed Order and Judgment Appointing a Guardian of the Person and Property of Mr. W., that included a provision awarding the court evaluator, Mr. Schager, a fee of $750.00.

On December 14, 2018, Mr. Schager submitted a reply affirmation, objecting to that provision of the proposed Order and Judgment that provided for compensation in the amount of $750.00, essentially arguing that the petition filed by DSS would not have been successful without the work he performed as court evaluator.

On January 2, 2019, Mr. Schager filed a supplemental letter brief, further objecting to compensation in the amount of $750.00, arguing that should the Court award such a fee he would be paid virtually nothing for the work he performed. This argument is repeated throughout the submission, with the assertion that § 81.09 of the Mental Hygiene Law (MHL) is a fee shifting provision, not a fee elimination provision. Mr. Schager claims that an award of $750.00 is in contravention of the statute, in that it is tantamount to an award of zero compensation to him as court evaluator.

Thereafter, the Court directed the petitioner, DSS, to submit a response to the court evaluator's request for compensation of $14,232.00. In its submission of January 23, 2019, DSS argues that MHL § 81.09(f) permits the Court discretion to award "reasonable compensation" for the services of a court evaluator, and may direct the petitioner to pay compensation to the court evaluator when the petition is denied or dismissed. DSS argues that the Article 81 proceeding was brought in good faith, and that it exercised due diligence in attempting to find less restrictive measures prior to instituting the guardianship proceeding. DSS further asserts that when it commences guardianship proceedings as the petitioner, it routinely consents to payment of the [*2]court evaluator in the sum of $750.00, in all five boroughs of New York City, when the alleged incapacitated person has no funds. The underlying policy consideration, according to DSS, is to incentivize eligible appointees to accept cases where the alleged incapacitated person has little or no assets. This ensures that Court appointed professionals are compensated. Additionally, DSS argues that the compensation it provides to such appointees are from public funds, and that should it be required to pay excessive fees it would create a chilling effect on its ability to commence these proceedings.

The court evaluator submitted a reply brief, dated January 30, 2019, arguing that contrary to the petitioner's assertion, the statute (MHL § 81.09(f)), does not state that the Court has the discretion to order the petitioner to pay compensation only when the petition is dismissed or denied. He further argues that the petitioner's claim of a chilling effect, and a limitation of its ability to bring guardianship proceedings should the petitioner be required to pay fees in excess of the customary $750.00 (where the alleged incapacitated person has no assets) is a "nonsensical proposition." (Schager Reply Br. at 2).

The Court finds the court evaluator's arguments unpersuasive. Undoubtedly, the duties of the court evaluator as delineated in MHL § 81.09(c)[1] through [9], make clear that the task of the court evaluator is an important one. The statute's commentary clearly describes a court evaluator's role as an "independent investigator to gather information to aid the court in reaching a determination about the person's capacity, the availability and reliability of alternative resources, and assigning the proper powers to the guardian, and selecting the guardian." (Law Rev Commn Comments, McKinney's Cons Laws of NY, 2011 Electronic Update, Mental Hygiene Law § 81.09 at 6). Indeed, as both parties concede, the court evaluator is to be "the eyes and ears of the court." (Petitioner's Mem. Of Law at 6, Schager Reply Br. at 3).

The court evaluator here appears to confuse his duties as court evaluator with those of the petitioner, arguing that he was forced to do the work that DSS should have done. He further argues that but for his work the petition would not have been successful. Mr. Schager misunderstands his role as court evaluator. He was not appointed as a court evaluator to ensure that the petitioner was successful in seeking the appointment of a guardian for Mr. W. Rather, a court evaluator is a neutral appointee entrusted with duties and responsibilities as set forth by statute, to assist the court in determining whether a guardian should be appointed, or whether there are less restrictive measures that can be employed to protect the subject of the proceeding.

Pursuant to MHL § 81.09(a), Justice Shawn T. Kelly appointed Mr. Schager as court evaluator upon the issuance of the order to show cause. At that time, Mr. Schager knew or should have known of DSS's policy of consenting to payment of $750.00 in cases where the alleged incapacitated person has little or no assets. Moreover, it is apparent from a review of Mr. Schager's affirmation of services, that the work he performed as court evaluator was consistent with that required by MHL §81.09(c), and that he was not required to undertake work that is beyond the scope of the statute. His objection to payment by the petitioner in the sum of $750.00, because it is akin to compelling a court evaluator to "work for free" and working for "minimum wage", is unavailing.

Contrary to Mr. Schager's contentions, the Court is not constrained to award a fee that he believes is reasonable. As Mr. Schager concedes, the Court has discretion to award a court evaluator "reasonable compensation." MHL §81.09(f) states that when the petition is granted "the court may award a reasonable compensation to a court evaluator...payable by the estate of the alleged incapacitated person." However, where a judgment is denied, or a petition is dismissed, the statute permits the Court to award a "reasonable allowance to a court evaluator" payable by the petitioner or the alleged incapacitated person or a combination of both. See Matter of Lyles, 250 AD2d 488, 489 (1st Dept 1998). In In re Charles X., 66 AD3D 1320 (3d Dept 2009) the Appellate Division, Third Department, reversed the lower court's order directing petitioner to compensate the court evaluator where the petition was granted, finding that the Court was without authority to do so. The Court specifically noted that a Court may direct the petitioner to pay such compensation only when the petition is denied or dismissed.

Here, the judgment was granted in favor of the petitioner, however the alleged incapacitated person has no assets from which an award of fees can be made. Therefore, based on MHL § 81.09(f), it is in the Court's discretion whether or not to award compensation to the court evaluator. Nonetheless, DSS has consented to payment of a fixed fee of $750.00, to compensate court evaluators who would otherwise be working free of charge, as a matter of public policy. The Court does not find DSS's policy to be "nonsensical", as it provides a vital service to the community by protecting at risk adults who may require the appointment of an Article 81 guardian.

The Court finds the cases cited by the court evaluator in support of its position to be inapposite to the facts presented here. In Fairly v. Fairly, 136 AD3d 432 (1st Dept 2016), a case heavily relied upon by the court evaluator, the petitioner was ordered to pay the fees of the appointees upon dismissal of the petition. The petitioner never appealed, and the Court found that the issue was waived. Further, in Fairly the Court found the petitioner's conduct to be "unjustifiable", and therefore determined that the petitioner should pay compensation as ordered by the lower Court. No such facts are presented here.

Likewise, Mr. Schager's reliance on Matter of Cziraky, 48 Misc 3d 271 (Sup Ct Broome County 2015) is misplaced. In Cziraky, the Court ordered the petitioner, a nursing home facility, to bear the cost of compensation because "addressing the risk of a non-paying resident is a business cost to be borne by petitioner." Id. at 273. That is simply not the case here, and Cziraky is therefore distinguishable.

Based on the facts and circumstances presented, the Court, in its discretion, finds that the petition was meritorious, having been brought in good faith, and the alleged incapacitated person lacks the financial resources to compensate the court evaluator in the amount of $14,232.00. Therefore, the petitioner is not required to pay the court evaluator's fee beyond the amount it has consented, which is $750.00, and the application of court evaluator Richard Schager, Esq. is hereby denied.

It is hereby



[*3]ORDERED AND ADJUDGED, that the court evaluator's request for compensation in the sum of $14,232.00, at a billing rate of $300.00 per hour to be paid by the petitioner is denied; and it is further

ORDERED AND ADJUDGED, that the petitioner is to pay compensation to the court evaluator in the amount of $750.00.

This constitutes the decision and order of the Court.



3/5/2019$SIG$

HON. LILLIAN WAN