Matter of Weiss (Agam S.)

[*1] Matter of Weiss (Agam S.) 2023 NY Slip Op 50043(U) Decided on January 13, 2023 Supreme Court, Nassau County Knobel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2023
Supreme Court, Nassau County

In the Matter of the Application of Janna Weiss,
THE MOTHER OF THE INCAPACITATED PERSON FOR AN ORDER OR JUDGMENT GRANTING A CHANGE IN VENUE OF THE GUARDIANSHIP OVER THE PERSON AND PROPERTY OF Agam S.
AN INCAPACITATED PERSON.



Index No. 132074-I-2016

Anthony DeCarolis— Guardian's Counsel
53 E Main Street, Oyster Bay, NY 11771
anthony@adlawli.com
(516) 922-7870

Jonathan Rosenberg — Mother's Counsel
137 Court Street Fl. 2, Brooklyn, NY 11201
jonathan@rosenbergpllc.com
(718) 715-4845 Gary F. Knobel, J.

Papers Considered
Motion to change venue and change guardian 1-2
Opposition papers 3

Upon the foregoing papers, the motion by the mother of the incapacitated person for an order inter alia changing the venue of this action from Nassau County to Kings County is granted for the reasons stated below.

This Court has not only been presented with a repetitive motion by the movant to remove the guardian, but also a vexing, practical issue which occurs frequently in guardianship cases for a variety of reasons: retaining or changing venue when the basis for venue no longer exists.

In 2014 Queens County Family Court placed Agam S.("Agam") with S.C.O Family of Services Robert J. McMahon's Children's Center ("SCO"), located in Nassau County. In 2016, SCO filed a petition in Nassau County Supreme Court for the appointment of a guardian for Agam. The petition was granted and Agam's father was appointed Guardian of the Person and Property. Agam's mother cross-petitioned to be Agam's guardian, but her petition was denied by this Court, and again in 2020 by the Hon. Arthur Diamond. To the Court's knowledge, neither Agam, or his father, or his mother has ever lived or intended to live in Nassau County.

In 2019, Agam reached the maximum age allowed at SCO, and Agam was relocated to King's county to be under the auspices of the Jewish Board of Family and Children's Services ("Jewish Board"). Agam's father resides in Texas but is in regular contact with Agam through video and telephonic communication. Agam's mother resides in Queens County in Ozone Park. Agam has resided in Kings County since his move to Jewish Board in 2019. The current issue presented to the court is whether a change in venue, from Nassau County to Kings County, can and should be granted.

Mental Hygiene Law § 81.05(a) states:

A proceeding under this Article shall be brought in the Supreme Court within . . . the County Court of the County in which the person alleged to be incapacitated resides, or is physically present . . . . If the Person alleged to be incapacitated is being cared for as a resident in a facility, the residence of that person shall be deemed to be in the County where the facility is located and the proceeding shall be brought in that County, subject to application by an interested party for a change in venue to another county because of the inconvenience of the parties or witnesses or the condition of the person alleged to be incapacitated.There is no question that Nassau County was an appropriate venue when this proceeding was commenced.

The primary focus encompassing all guardianships is to always act in the best interest of the incapacitated person considering their personal wishes, preferences and desires; this is true even when deciding to change venue (Mental Hygiene Law § 81.01; see generally In re Guardianship of Beasley, 234 AD2d 32 [1st Dept. 1996]).

Subject to an application to change venue by an interested party the court in making a determination will examine the following factors: (1) the inconvenience of the forum as to the parties; (2) the inconvenience of the forum as to witnesses; and (3) the condition of the alleged incapacitated person (see, Mental Hygiene Law § 81.05(a); In re Jewish Ass'n for Services for Aged, 19 Misc 3d 1145[A], 867 N.Y.S.2d 17 [Sup Ct., Queens 2008]).

Mental Hygiene Law § 81.05 (a) does not specifically address the circumstance when the basis for venue no longer exists. Consequently, the Court turns to Article 5 of the C.P.L.R. and prevailing appellate caselaw for guidance. C.P.L.R. § 503(a) states that proper venue inter alia is the county in which one of the parties resides at the time the action or proceeding is commenced. C.P.L.R. § 510 states that venue may be changed where: (1) the county designated for that purpose is not a property county; (2) there is reason to believe that an impartial trail cannot be had in the proper county; or (3) the convenience of material witnesses and the ends of justice will be promoted by the change. It is well settled that the "convenience of material witnesses" pertains to material nonparty witnesses.

There is no provision in Article 5 which pertains to the venue of an action when the basis for that venue no longer exists. Consequently, the appellate courts have created a principle of law as a result of this omission. The Second Department has held that when the underlying basis for venue no longer exists, a change in venue to where one of the parties reside is appropriate (see, Canaan v. Costco Wholesale Membership, Inc., 49 AD3d 583, 585 [2nd Dept 2008]; see also Whelton v. Dayton Beach Park No. 1 Corp., 110 AD3d 987, 988 [2nd Dept. 2013]; Messiha v. Staten Is. Univ. Hosp., 77 AD3d 894, 895 [2nd Dept. 2010]).

Taking into consideration all of the factors cited above, the Court finds that a change of [*2]venue to Kings County is appropriate and would be in the best interest of Agam. At the time this proceeding was commenced in Nassau County, there was no indication that Agam ever intended on residing in Nassau County. The only reason Agam ever entered Nassau County was pursuant to an order of the Queens Family Court so that he could reside at a facility with appropriate accommodations for him. Agam no longer resides in the facility and is unable to return based on his age. Although many guardianship justices are conducting hearings virtually for the convenience of the witnesses and the alleged incapacitated person, some justices are conducting contested proceedings in their courtroom. If there is an in-person proceeding with respect to the remaining branches of the mother's motion, the convenience of the material nonparty witnesses in Kings County at the facility where Agam resides is important.

Thus, it is in the best interest of Agam for this matter to be transferred to Kings County Supreme Court, less than seven miles from where Agam currently resides with no foreseeable intention of moving.

The remaining branches of the mother's motion for an order permitting visitation and removing the guardian are held in abeyance and shall be heard and determined by the justice assigned to this proceeding in Supreme Court, Kings County.[FN1] Upon the service of a copy of this order upon her, the Clerk of Supreme Court, Nassau County, is directed to deliver to the Clerk of the Supreme Court, Kings County, all papers filed in this action and certified copies of all minutes and entries, and the Clerk of Supreme Court, Kings County, or the Guardianship Clerk of Supreme Court Kings County, is respectively directed to assign this matter to a guardianship part.

The foregoing constitutes the decision and order of this Court.

ENTER
DATED: January 13, 2023

______________________________
HON. GARY F. KNOBEL J.S.C. Footnotes

Footnote 1:See, Rosenblatt v. Sait, 34 AD2d 238 (1st Dept. 1970) (holding once a special Term decided that venue should be changed to a county outside of this department it should have relegated all motions to the transferee court)