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In re Domenica P. (Anonymous)

Supreme Court of New York, Second Department

March 28, 2018

In the Matter of Domenica P. (Anonymous). United Guardianship Services, respondent; Law Offices of Ira S. Newman, et al., appellants. Index No. 8348/11

          Submitted - December 6, 2016

         D54804 O/htr

          Law Offices of Ira S. Newman and Ira S. Newman, Great Neck, NY, appellants pro se.

          Miller & Milone, P.C., Garden City, NY (Tammy Rose Lawlor of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JOSEPH J. MALTESE BETSY BARROS, JJ.

          DECISION & ORDER

         In a guardianship proceeding in which United Guardianship Services, the guardian of the person and property of Domenica P., an incapacitated person, in effect, petitioned pursuant to Mental Hygiene Law § 81.43 to recover certain property allegedly withheld from the incapacitated person and for an award of attorney's fees, the Law Offices of Ira S. Newman and Ira S. Newman appeal from (1) a decision of the Supreme Court, Queens County (Bernice D. Siegal, J.), entered October 16, 2014, and (2) an order and judgment (one paper) of the same court entered January 22, 2015, which granted the petition and is in favor of the petitioner and against them in the total sum of $23, 737.50.

         ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 A.D.2d 509); and it is further, ORDERED that the order and judgment is reversed, on the law, the petition is denied, and the proceeding is dismissed; and it is further, ORDERED that one bill of costs is awarded to the appellants.

         In 2011, the petitioner was appointed as the guardian of the property of Domenica P., an incapacitated person suffering from Alzheimer's disease, in a proceeding pursuant to Mental Hygiene Law article 81. Domenica P.'s daughter, Rosario R., was appointed as guardian of the person. At that time, Domenica P. lived in a house with her daughter in Ozone Park, Queens.

         After a home care attendant reported an altercation in the home, the Department of Social Services requested that the petitioner file a motion to become guardian of the person of Domenica P. The petitioner made the motion and the Supreme Court, Queens County (Nahman, J.), held a hearing on the issue. After the hearing, the court concluded that the daughter committed verbal abuse and one act of physical abuse against Domenica P. Further, although the issues were only briefly addressed at the hearing, the court also found that the daughter failed to file necessary reports in connection with her role as guardian of the person, and that she failed to turn over unspecified assets of Domenica P. to the petitioner as the guardian of the property. Based on these findings, the court issued an order removing the daughter as the guardian of the person and appointed the petitioner as the guardian of the person (hereinafter the removal order). Thus, the petitioner became both the guardian of the person and the property of Domenica P.

         After her removal, the daughter retained the Law offices of Ira S. Newman and Ira S. Newman (hereinafter together the appellants) to represent her in challenging the removal order. The daughter paid the appellants a retainer of $20, 000 by check dated March 22, 2013, drawn on her personal account. The appellants inquired about the source of these funds and the daughter assured them that the money was from her own savings. Subsequently, the daughter tried to pay additional legal fees to the appellants with a check drawn on an account held jointly in her name and that of Domenica P., but the appellants refused to accept that check. Thereafter, the appellants ended their representation of the daughter, upon her direction and consent, with an unpaid balance due and owing.

         At a conference held on March 24, 2014, the daughter admitted that the $20, 000 she paid the appellants as a retainer fee actually originated from funds belonging to Domenica P. Upon learning this, the appellants informed the Supreme Court that they would research whether the $20, 000 was subject to recoupment in the ongoing guardianship proceedings. In a letter to the court dated April 1, 2014, the appellants stated that they had found no precedent requiring "the recoupment'' from them of the $20, 000 retainer. The appellants explained that, when they accepted the fee, they did not know that the money actually belonged to Domenica P. They had not taken part in any fraud committed by the daughter, and they provided fair consideration for the $20, 000 in the form of legal services.

         Thereafter, the petitioner, in effect, commenced this turnover proceeding pursuant to Mental Hygiene Law § 81.43, seeking the return of the $20, 000 from the appellants. The Supreme Court granted the petition without a hearing and entered a judgment in favor of the petitioner and against the appellants in the total sum of $23, 737.50, which included an award of attorneys' fees in the amount of $3, 737.50. We reverse, deny the petition, and dismiss the proceeding.

         "Mental Hygiene Law § 81.43 provides a mechanism by which a guardian appointed in a Mental Hygiene Law article 81 proceeding may fulfill his or her duties of identifying and protecting the assets of an incapacitated person for that person's benefit" (Johnson v Buono, 141 A.D.3d 782, 782, citing Mental Hygiene Law §§ 81.20[6][ii], [iv]; 81.43[a]). "It is part of an overall statutory scheme that is remedial in nature and designed to assist persons in taking action through a representative that they could not otherwise take [care of] themselves because of their incapacity'' (Johnson v Buono, 141 A.D.3d at 782, citing Mental Hygiene Law § 81.01).

         More specifically, Mental Hygiene Law § 81.43(a) provides that "[t]o the extent that it is consistent with the authority otherwise granted by the court a guardian may commence a proceeding in the court which appointed the guardian to discover property withheld" from the incapacitated person. Mental Hygiene Law § 81.43(a) further provides, in pertinent part, that the petition shall contain knowledge "of any facts tending to show that any interest in . . . money . . . which should be delivered and paid to the guardian, is in ...


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