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In re Application of Judith T.

County Court, Nassau County

December 22, 2017

In the Matter of the Application of Judith T., for the Appointment of a Guardian for the Person and Property of Rosalie D.T., An Alleged Incapacitated Person.

          Attorney for Petitioner John Newman, Esq.

          Attorney for AIP Kantrowitz, Goldhamer & Graifman, P.C., by Louis B. Gerber, Esq.

          Court Evaluator David Smith, Esq.

          Gary F. Knobel, J.

         This is a hotly contested Article 81 ten day proceeding (over a span of four months) for the appointment of a guardian for the person and property of respondent Rosalie D.T., an alleged incapacitated person (hereinafter the AIP). Judith T., the petitioner and daughter of the AIP, brought this proceeding to ostensibly address the AIP's purported recent negative change in behavior which, according to petitioner, now requires the appointment of a guardian. Among other things, the petitioner and her two sisters testified at the protracted hearing that the AIP has exhibited unreasonable desires and wishes, such as living in Manhattan and volunteering at the American Museum of Natural History, without recognizing the difficulties involved in achieving those aspirations. In their opinion, their mother's paranoid, unrealistic and somewhat delusional behavior is a result of a stroke the AIP suffered approximately eight years ago, and the manipulative and inappropriate actions of the AIP's former occupational therapist, Jim Johnson.

         On the day of trial, petitioner's counsel presented a motion in limine, "confirming petitioner's right to call Rosalie D. T. as a witness, confirming the admissibility of emails between Rosalie D. T. and Jim Johnson, and striking" certain hearsay from the court evaluator's report. This Court denied the branch of the motion permitting the petitioner to call the AIP as a witness on the grounds that since the petition seeks to restrain and remove the AIP's liberty rights, compelling the AIP to testify would be a violation of the AIP's Fifth Amendment right against self-incrimination, and would also be contrary to the intent and spirit of Mental Hygiene Law §81.12(a), which places the burden of proof on the petitioner to prove her or his case without having to rely on the AIP's testimony. The branch of the motion seeking the admissibility of the emails between the AIP and her former occupational therapist was denied without prejudice to renew if an evidentiary predicate was presented. The branch of the motion striking hearsay statements for the court evaluator's report was denied.

         At trial, the petitioner and her sisters testified about their love for their mother, a former schoolteacher, and how much effort and care they have provided to her since the AIP's stroke eight years ago, which effected the right hemisphere of her brain and severely hampered her ability to walk and perform the usual activities of daily living that we take for granted. The AIP was placed in the Rusk Institute for treatment and after discharge she continued to receive therapy at home on a regular basis. Although the petitioner and her sisters testified that their mom was clearly incapacitated at that time, a guardianship proceeding was never considered by the family until this year, when the sisters surreptitiously discovered that their mom, with the help of Mr. Johnson, was retaining an attorney to commence a divorce proceeding, which the AIP commenced before this proceeding. Mr. Johnson, who the sisters and the petitioner portrayed as a Svengali, was immediately terminated by the sisters because he overstepped the patient-therapist boundary, even though they testified that he had helped their mom over that eight-year period. The petitioner and her sisters testified further that although the commencement of this action put a strain on their relationship with the AIP, they were concerned that their mother could not take care of herself without their assistance and an aide, and that she was not able to manage her significant assets and daily banking. At times during the trial, the testimony adduced was more appropriate for the pending matrimonial action; the AIP's husband did not testify in this proceeding, nor were any medical witnesses presented.

         The petitioner's direct case called as witnesses Mr. Johnson and the court evaluator, David Smith, both of whom refuted the petitioner's claims. The court evaluator, regardless of whether he was testifying in the narrative, as permitted to by this court, or under grueling, extensive cross-examination, as when he respectfully testified that the sisters' perceptions of their mother (as opposed to his conclusion) reminded him of the great movie Rashomon, the court evaluator remained steadfast in his findings and conclusion, based on his interviews of the family members, Mr. Johnson and the AIP's aide, that the AIP was not an incapacitated person as defined by Mental Hygiene Law § 81.02.

         At the close of petitioner's case, the respondent's counsel sought a directed verdict and dismissal of the petition on the ground that the petitioner did not establish by clear and convincing evidence that the respondent was an incapacitated person in need of a guardian for both her person and property management needs. The Court reserved decision on respondent's application (in light of an apparent incongruity in the principles of law in directing verdicts in jury and bench trials), and directed the respondent to proceed with her case.

         Respondent AIP declined to testify, and instead called as her witnesses her long-time neighbor and friend, and her physical therapist. Both verified that the AIP was capable of managing all aspects of her life and was not in need of a guardian for her personal needs or property management. At the close of the respondent's proof and in summation, petitioner's counsel asked for a directed verdict in favor of the petitioner.

         In determining whether a guardian must be appointed for the personal needs and/or property management of an alleged incapacitated person, the court is mandated to apply a two-pronged test in both instances (see Mental Hygiene Law § 81.02 [a]; see, Matter of Daniel TT., 39 A.D.3d 94, 96-97 [2007]; Matter of Maher, 207 A.D.2d 133, 139-140 [1994]). To appoint a personal needs guardian, the court must first determine that "the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care or safety" (see Mental Hygiene Law § 81.02[a][1]). Similarly, to appoint a property management guardian, the court must first find that "the appointment is necessary to manage the property and financial affairs of that person" (see Matter of Carole L., 136 A.D.3d 917, 918 [2016]; Matter of Edward S. [Georgis-Corey], 130 A.D.3d 1043, 1044 [2015]). Second, to appoint either a personal or property guardian, the court must determine "that the person agrees to the appointment, or that the person is incapacitated [emphasis added]" (see Mental Hygiene Law § 81.02[a][2]). In evaluating "incapacity", the court must find that the AIP is "likely to suffer harm" because (1) "the person is unable to provide for [his or her]" personal needs, or property management, and (2) "the person cannot adequately understand and appreciate the nature and consequences of such inability [emphasis added]" (Mental Hygiene Law §§ 81.02[b][1], [2]; see Matter of Carole L., 136 A.D.3d 917, 918; Matter of Edward S. [Georgis-Corey], 130 A.D.3d 1043, 1044).

         The Legislature, in view of the alleged incapacitated persons' possible loss of some or many civil liberties as a result of a Mental Hygiene Law Article 81 proceeding, has mandated that the petitioner meet the highest standard of proof in civil cases, "clear and convincing evidence, " that the AIP is incapacitated (Mental Hygiene Law § 81.02 [b]; 81.12 [a]; see Matter of Samuel S. [Helene S.], 96 A.D.3d 954');">96 A.D.3d 954, 957 [2012]; Matter of Maher, supra at 140). The petitioner must "satisfy [the trier of fact] that the evidence makes it highly probable that what he claims is actually what happened" (Prince-Richardson on Evidence, § 3-205 [ ed.], quoting 1 NY PJI2d (Supp), P.J.I. 1:64). "The evidence required for a personal needs guardian would be to show that there are deficiencies in attending to the activities of daily life, including procurement of food, clothing, arranging for or maintaining shelter, coordinating health care or the inability of the individual to understand and appreciate the risk inherent in their behavior to their personal safety. Evidence of a need for a property management guardian would tend to show the individual's lack of understanding of his or her assets and value thereof, the individual's lack of providence with money, irrational asset management, and a failure to pay bills..." (Russo & Machlin, New York Elder Law and Special Needs Practice, § 8.3 [2017 ed.]).

         The determination of whether to direct a verdict pursuant to CPLR 4401 is to be cautiously made by the trier of fact. The statute and appellate precedent do not distinguish between a bench or jury trial in this context. If the AIP had sought a jury trial, which was her right pursuant to Mental Hygiene Law § 81.11 (f), this court, based on the facts and testimony presented, would have denied the respondent's motion based upon the established precedent set forth by the Court of Appeals in Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, at 499: "The criteria to be applied in making [the] assessment [of whether a jury verdict is not supported by sufficient evidence] are those of a Trial Judge asked to direct a verdict. It is a basic principle of our law that 'it cannot be correctly said in any case where the right of trial by jury exists and the evidence presents an actual issue of fact, that the court may properly direct a verdict' [citations omitted]"). This Court would not have taken the fact-finding responsibility of the jury away from it in view of the conflicting testimonial evidence presented on the petitioner's direct case.

         However, since this hearing was conducted as a bench trial, after considering the testimony and evidence on petitioner's direct case, this Court follows the Appellate Division, Second Department, precedent set forth in Matter of Samuel S. [Helene S.],96 A.D.3d 954');">96 A.D.3d 954 [2012], and grants the motion by the respondent, Rosalie D. T., for a directed verdict dismissing the petition on the ground that the petitioner "failed to establish a prima facie case by clear and convincing evidence that a guardian was needed to provide for the AIP's person or property " (Matter of Samuel S. [Helene S.],96 A.D.3d 954');">96 A.D.3d 954, 957; Mental Hygiene Law § 81.02[a][1]). Ironically, the testimony did prove that the AIP was "incapacitated" eight years ago, as defined by the Mental Hygiene Law, but not today. Although the AIP continues to suffer significant physical limitations and disabilities from her cerebral stroke on April 2009, which clearly affects her ability for herself to personally perform many of her personal daily needs, the Court finds that the petitioner did not prove by clear and convincing evidence that the AIP does not adequately understand and appreciate the nature and consequences of her inabilities and physical limitations, and is unable to arrange and provide for her personal and financial needs (see Mental Hygiene Law § 81.02[b]; Matter of Carole L., 136 A.D.3d 917; Matter of Edward S., 130 A.D.3d 1043). The Court ...

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