Bousquet v Chen

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Bousquet v Chen 2020 NY Slip Op 33145(U) September 23, 2020 Supreme Court, Kings County Docket Number: 514559/17 Judge: Genine D. Edwards Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 09/24/2020 02:18 PM INDEX NO. 514559/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/24/2020 I At an !AS Term, Part 80 of the Supreme Court of the State of New York, held in an~.for the County of Kings, at the Courthouse, at Ciyic Center, Brooklyn, New York, on the 23rdlday of September 2020. , PRESENT: I HON. GENINE D. EDWARDS, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X MICHAEL J. BOUSQUET and JUDITH MORRIS, Plaintiffs, Index N~. 514559/17 - against RICHY CHUN-YUAN CHEN, MD, ! ZOHIRUL ISLAM, MD NEW YORK METHODIST HOSPITAL, i Defendants. - - -- --- - - - - - - - - - - - - - - - - - - - - - - - - -- --X NYSCEFNo. The following e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed~---------- lo-11 Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ _ __ . 20 ! ------;'~2~4~---- Reply Affirmation and Exhibits Annexed 1 In this medical 1nalpractice action, defendants .move, pursuant to CPLf 3126 (2), for an order precluding Michael J. Bousquet (Bousquet) and Judith Morris (~orris) ' (plaintiffs) from offering any evidence related to outstanding discovery, or allernatively, . i pursuant to CPLR 3124, requiring them to comply with discovery demands ahd, pursuant to CPLR 1202, appointing a guardian ad !item for Bousquet. I Pursuant to this Court's decision, dated May 5, 2020, a virtual hearin~regarding • the validity of the power of attorney, was held on September 11, 2020. Def,ndants did not proffer any witnesses but rested on Bousquet's medical records and the d~position I 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 09/24/2020 02:18 PM INDEX NO. 514559/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/24/2020 I testimony ofBousquet's wife, Morris. Plaintiffs' sole witness was Morris, vfbo testified I that she was not present when the power of attorney was executed but indicatrd that I I Bousquet was of sound mind. I Discussion "To be valid, a statutory short form power of attorney must be signed a principal with capacity, with the signature of the principal duly ~d dated by i acknowled~ed in the manner prescribed for the acknowledgment of a conveyance of real property.I' Matter of Delaney, 170 A.D.3d 1008, 94 N.Y.S.3d 591 (2d Dept., 2019) (citing Generaf Obligations Law§ 5-1501B [l] [b]) (internal quotation marks and alteration tmitted; I• . emphasis added). General Obligations Law§ 5-1501 (2) (c) defines "capacity" as the "ability to comprehend the nature and consequences of the act of executing Jct granting. I .. a power of attorney, any provision 'in a power of attorney, or the authority ~f any . i person to act as agent under a po\ver of attorney." "A party's competence tolenter into a i transaction is presu1ned, even if the party suffers from a condition affecting cfgnitive function, and the party asserting incapacity bears the burden of proof." Mat~r of I Delaney, 170 A.D.3d I 008,. 94 N.Y.S.3d 591 (2d Dept., 2019) (internal quot~\ion marks i and citations omitted). Importantly, "(t)he incapacity must be shown to exisi at the time the pertinent document was executed." Id. I Defendants, who have the burden of proof, properly pointed to Morris j deposition ! I testimony and the medical documentation in support of their contention that ~ousquet did I not have the requisite mental capacity on Dec. 1, 2016, wherrthe power of attprney was ! I executed. The medical records demonstrate Bousquet's condition and same js bolstered I by Morris' deposition testimony. 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 09/24/2020 02:18 PM NYSCEF DOC. NO. 34 INDEX NO. 514559/2017 I RECEIVED NYSCEF: 09/24/2020 In opposition, Morris' hearing testimony lacks probative value. Inde¢d, Morris I was not even present during the execution of the power of attorney and thus ~he cannot I offer relevant testimony as to Bousquet's 1nental capacity at the time the po"1er of I attorney was signed. Although Morris alluded to the fact that her son was ptesent as I well as Bousquet's friend, who notarized the power of attorney, neither \Vas ~reduced at I the hearing. Regarding discovery, the deposition of Morris shall be completed on qr before ! ! November 13, 2020. Plaintiffs shall fully comply with the Final Conferenc~ Part Order, I dated June 25, 2019 by October 16, 2020, or plaintiffs may be precluded frotj> offering any evidence at the trial of this matter. C011clusio11 Based upon the foregoing, it is I I I I ORDERED that defendants' motion is granted to the extent that Juditll Morris is ! appointed as guardian ad li(em for her husband, Michael J. Bousquet. The c~ption is I amended as follows: 3 3 of 4 . . L. . [*FILED: 4] KINGS COUNTY CLERK 09/24/2020 02:18 PM INDEX NO. 514559/2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/24/2020 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------- - -X MICHAEL J. BOSQUET BY HIS GUARDIAN AD LITEM JUDITH MORRIS and JUDITH MORRIS, INDIVIDUALLY, Plaintiffs, IndexN. 514559/17 - against RICHY CHUN-YUAN CHEN, MD, ZOHIRUL ISLAM, MD NEW YORK METHODIST HOSPITAL, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------- - -X This constitutes the Decision and Order of the Court. T J. 4 4 of 4 s. c.

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