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
Offices of Ira S. Newman and Ira S. Newman, Great Neck, NY,
appellants pro se.
& Milone, P.C., Garden City, NY (Tammy Rose Lawlor of
counsel), for respondent.
E. CHAMBERS, J.P. LEONARD B. AUSTIN SHERI S. ROMAN JOSEPH J.
MALTESE BETSY BARROS, JJ.
DECISION & ORDER
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.
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
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
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
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
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.
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.
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[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).
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 ...