Foncette v Daniel

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Foncette v Daniel 2023 NY Slip Op 33124(U) September 7, 2023 Supreme Court, Kings County Docket Number: Index No. 525410/2021 Judge: Leon Ruchelsman 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. INDEX NO. 525410/2021 FILED: KINGS COUNTY CLERK 09/07/2023 03:00 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 -----. - .- . --·. -- .-------- . ----.------- ·--·---x KENRICK FONCETTE, Plaintiff, Decision and order 1nde~ No. 525410/2021 - against SHARON DANIEL, Defendant, September '!t- , 2023 ___._ . _ .. ·--·· -·- . ------- .. ·-· ·. ---·--------·· ---- ·x Motion Seq. #1 PRESENT: HON. LEON RUCHELSMAN & #2 The petitioner has moved seeking to compel the respondent "to provide an accounting and a record of all receipts, disbursements, and transactions entered into by the Respondent, and to deliver any property belonging to Whilma Foncette to her Guardianship Estate" ( ~ , Verified Petition, CJ[l [NYSGEF Doc. No. l]) pursuant to GOL § 5-1510 C2). The rE!spondent has filed a cross-petition essentially seeking a dismissal of the petition. Papers were submitted by the parties ahd after reviewing all the documents available oh NYSCEF and all the arguments, this i:ourt now makes the following determination. The petitioner and the respondent are siblings. Their mother, Whilma Foncette,. was declared incapac•itated in a decision and Order dated April 1, 2021 (J:ndex Number 512612/2020) . The respondent was appointed.Guardian of the property, and another sibling, Karen Moore was appointed Guardian of. the person. As noted, the petitioner brings this petition seeking, e-ssentially, an accounting from the respondent regarding her duties as the agent under Whi1ma Foncette's power of attorney until her [* 1] 1 of 4 INDEX NO. 525410/2021 FILED: KINGS COUNTY CLERK 09/07/2023 03:00 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/07/2023 appointment as Property Guardian. The respondent seeks to dismiss the petition, arguing it has no merit. Conclusions of Law General Obligations Law § 5-1510 (2) (el States that Concerning the duties of·a power of attorney "a special proceeding may be commenced pursuant to this section for any o-f to approve the record of all the following additional purposes: receipts, disbursements and transactions entered into by the agent on behalf of the principal" (id). Pursuc:rnt to that statute the petitioner seeks an accounting of the respondent's transactions during her tenure as agent under the power of attorney. The respondent presents two reasons why the petition should be dismissed. First, the petitioner allegedly engaged in highly improper conduct himself including allegations he kidnaped his mother, and thus he has no basis to complain about his sister's alleged financial improprieties. .legal basi.s to make the Second, the petitioner has no request wi.thout any evidence of wrongdoing. Concerning the respondent's first argument, the mere fact the petitioner may have acted improperly does not .foreclose his ability to seek a.r1 accounting. As the court observed i.n ln re Walter K.H., 31 Misc3d 1233(:A), 930 NYS2d 177 [Supreme court Erie County 2011] '~the duty of a fiduciary is: ower;:i to the. principal, 2 [* 2] 2 of 4 INDEX NO. 525410/2021 FILED: KINGS COUNTY CLERK 09/07/2023 03:00 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/07/2023 in this case Rosali•e H,, not to ai)y third party" (id). Thus, the petitioner's conduct has no bearing on whether he can pursue an accounting on behalf of the principal. Concerning the legal basis for the petition; a careful reading of the statute in question notes that a petition may be filed to "approve the record of all receipts, disbursements and transactions entered into by the agent on.behalf of the principal" (GOL §5-1510(2) (e)). Consequently, there is no right that entitles the petitioner to obtain copies of the above noted information.. Rathe:i;-, a hearing may be conducted where the court may be asked to "·cipprove" all transactions undertaken by the agent. 304 Thus, in Bonczyk.v. Williams, 119- AD3d 1124, 99'0 NYS2d [3 rd Dept., 2014] the court noted that "petitioners commenced this special proceedirig pursuant to General Obligations Law§ 5-1510(2) fe) seeking judicial approval of the receipts, disbursements and transactions entered into by respondent on behalf of decedentl' (id). Therefore, there is no specific requirement th.3.t mandates an agent must prepare: an accounting on behalf of an interested party. Rather, a court proceeding can be c.ommenced where all such expend:Ltures made by the agerit on behalf of the principal can be evaluated. However, the petition does not .allege any improp~r condqct by the respondent. The petitior1 does state that "petitioner has long fea:ted that there has been significant waste ancl misappr_op~iat:ion of Ms~ E:'oncette.' s 3 [* 3] 3 of 4 INDEX NO. 525410/2021 FILED: KINGS COUNTY CLERK 09/07/2023 03:00 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/07/2023 a.s .resou,rces during= Res.Pon.dent's time Petition, i13 [NYSCE"F Doc. No. 11). agent" ( see,. Verlf .ie"d However, othe-r than·-. ·that c;,f any conclus"ory and va·gu.e a:ss:ertion, there is no allegation misccmduct that even p.ipmands a c.ourt hea1:ing on the matt.er. Although the petitioner may not be aware of the respondent's ex-penditures and may not· know wit.h a;ny certainty of· -any itttp-roiYr-let ies, nevertheless, some· -al legation requirirn:i the court's involvement must.be alleged in fhe petition. As the co1J.rt held in Sheridan v, Silver; 2021 WL 5331549 [Supreme Court New York County 2021) ''the Court finds that petitio.ne'.!'.' h.as.. not met :her:- burden to c::.omp:e.l the Court. t_o ·require app;r;ov:al df the tr.an_sactions at iss-u·e. ·.•. It is undisputed that respondent is acting under a broad power of attorney that is not subject to any limit,;3,tions. U:nder the.s.e circumstances, the Court declines to intentene without s-ome actual show-ihg ·of wrortgdoin.g .• On these pa-p.e-r-s, petitioner- :_o.nl-y offers sPJ~culati.on ano. inrn,1epq9 -ab_out ~-.l,lppo_.SE!d rnalfec1s~ncE!" (.id) . Similarly, in this cas~ ·there· is no allegati.ph .of w:i:::ongdoing at all. foregoing, the The:i::efore, based on the_ motion seeking the· peti tiort is deni.ed and the cross-motion seeking-, ·e:$sentially, to -dismiss the pe.tit±..op is g·rant.ed. So ordered. ENTER: DATED: September · _, t_·. 2023 Hdnw Leon RuChels~an, JSC Brooklyn N.Y. -4 [* 4] 4 of 4

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