Opinion
100128/10
09-23-2011
In the Matter of the Application of Samuel Schwarz and SIMON SCHWARZ, Petitioners, for the Appointment of a Guardian of the Personal Needs and Property Management of SAMUEL SCHWARZ, Respondent. A Person Alleges to be Incapacitated. HELENE SCHWARZ Cross-Petitioner.
Simon Schwarz, Esq.- Petitioner. Anthony Lamberti, Esq.- Represents Helene Schwarz, Cross-Petitioner. Julie Clark, Esq.- Court Evaluator.
Simon Schwarz, Esq.- Petitioner.
Anthony Lamberti, Esq.- Represents Helene Schwarz, Cross-Petitioner.
Julie Clark, Esq.- Court Evaluator.
Kathy J. King, J.
At the close of Petitioners' case in chief in this guardianship proceeding, cross-petitioner moved to dismiss for petitioners' failure to establish a prima facie case. After oral argument, the court granted the motion on the record, and the cross-petition was withdrawn. The court now issues the following Memorandum Decision: I. PROCEDURAL HISTORY
This guardianship proceeding was commenced by the filing of a petition dated July 11, 2010, by Samuel Schwarz, the Alleged Incapacitated Person ("AIP") as co-petitioner and Simon Schwarz the brother of the AIP, as attorney for the AIP and petitioner pursuant to Article 81 of the Mental Hygiene Law (hereinafter "MHL") . Petitioners' seek an order and judgment pursuant to MHL § 81.02 appointing a personal needs and property guardian for the AIP. The petition, if granted, seeks the appointment of Simon Schwarz as pro bono guardian with the power: (a) to appoint Risa Katz as primary caretaker for the AIP; (b) to relocate of the AIP to 1037 51st Street, Brooklyn, NY; (c) to make medical, dental, and social decisions for the AIP; (d) to collect the assets and pay all expenses for the AIP; (e) to create trusts of property of the AIP; (f) to apply for governmental benefits for the AIP and (g) to set up a prepaid burial the AIP. Alternatively, should a guardian not be appointed, petitioners' seek an order pursuant to MHL § 81.16 (b) ratifying a power of attorney executed by the AIP on January 21, 2010 which appointed Simon Schwarz as agent.
The petition avers that the AIP consents to the proceeding and that the AIP nominates Simon Schwarz as guardian. The AIP is a 57 year old Rabbi, Talmudic Scholar and retired economics professor, who has been bedridden by multiple sclerosis that in recent years has been exacerbated by diabetes and leukemia. The petition alleges that the AIP is being wrongfully and unlawfully detained, isolated, and coerced by Helene Schwarz, the sister of both the AIP and petitioner, and her husband Jack Kartaginer; that AIP's assets have been unlawfully dissipated by Helene Schwarz and Jack Kartaginer and that Helen Schwarz' procurement of a health care proxy and power of attorney were obtained under duress.
Helen Schwarz filed a cross-petition seeking an order dismissing the petition because previously executed advance directives existed, thereby negating the need for a Guardian and voiding a power of attorney allegedly executed on January 21, 2010 pursuant to MHL § 81.29, or alternatively, should the petition be granted, seeking an order appointing Helene Schwarz as guardian if the court deemed necessary.
Petitioner had previously filed a writ of habeas corpus before Judge Larry Martin, by petition dated April 22, 2010, which alleged that the AIP's unlawful detention and isolation resulted inter alia in (1) the deterioration of the AIP's physical and emotional health, (2) misappropriation of the AIP's finances without proper accounting, and (3) alienation from the petitioner and Risa Katz, allegedly the AIP's closest siblings. By written stipulation dated June 21, 2010, the petitioner withdrew the habeas corpus petition.
On April 28th, 2011 this court reinstated the habeas corpus claim and consolidated said claim with the instant guardianship matter.
In essence, the instant proceeding arises amid allegations of physical, psychological,emotional, and financial abuse of the AIP by one sibling against another. Due to the nature of these allegations, the proceeding was unduly protracted, marked by extensive motion practice and vociferous advocacy. Additionally, multiple hearing dates over the course of several months were scheduled based on the number and availability of witnesses on petitioner's direct case as represented to the Court. In the interest of justice, accommodations were made to include eleven hearing dates as follows:
August 11, 2010 — Initial hearing date of the within guardianship proceeding; on consent of the parties the matter was adjourned to September 16, 2010;
September 16, 2010 - Matter adjourned to October 18, 2010 due to hospitalization of
Petitioner, Simon Schwarz;
November 29, 2010 - The Court heard argument on the petition and cross-petition and the matter was adjourned to February 7, 2011.
February 7, 2011 - Dr. Lynch, the court appointed psychologist and Julie Clark, the court evaluator testified; Thereafter, the matter was set down for continued hearing on February 15, 2011, however, the court was unavailable due to illness and the matter was adjourned to February 23, 2011;
February 23, 2011 - The court heard continued testimony of the Court Evaluator and the matter was adjourned to March 16, 2011; The matter was subsequently adjourned from March 16 to March 21 due to another case on trial;
March 21, 2011 — Court conducts a personal interview at the AIP's residence 864 East 23rd Street, Brooklyn, NY;
April 27, 2011 and April 28, 2011 - The court heard continued testimony of the Court Evaluator; On April 28, 2011 the court also heard testimony of Michael Katz, the AIP's nephew ;
June 1, 2011 - Dr. Steve K. Hogue, a board certified clinical and forensic psychologist testifies on Petitioner's direct case. The court directs Dr. Hogue to conduct a bedside evaluation of the AIP and instructs the parties to coordinate a date for said evaluation.
June 2nd 2011 — Dr. R. Reimer Danov, a pediatric/adult neuro-psychologist, specializing in multiple sclerosis testifies on Petitioner's direct case. Matter adjourned to June 22, 2011 for Dr. Danov's continued testimony, and any other witnesses.
June 22, 2011 - Petitioner advised the court that he filed a motion returnable on June 27, 2011 seeking to reargue the court's June 1st ruling directing Dr. Hogue to conduct a bedside evaluation in lieu of an evaluation at his medical office in Manhattan. Additionally, petitioner argued that due to the instant motion he unilaterally instructed Dr. Danov not to appear. Upon review, the court advanced said motion which was denied. Dr. Danov, without court permission, did not appear and as a result was not present for cross-examination. Upon application of the cross-petitioner, the testimony of Dr. Danov was stricken. After court inquiry, the petitioner had no additional witnesses and the court deemed the petitioner to have rested.
Thereafter, cross-petitioner made the instant motion to dismiss.
II. MOTION TO DISMISS
When deciding a motion to dismiss at the close of plaintiff's case for failure to present a prima facie case, the Court is to look at the evidence in the most favorable light for the nonmoving party. (see, Fertilo v. Great South Bay Associates 140 AD2d 408 [2nd Dept. 1988]). Therefore, when accepting the evidence of the nonmoving party as true, the test is whether there is no rational basis by which the Court, or trier of fact, could find in favor of the non-mover. (CPLR Rule 4401.4; see, Murphy v. Herfort 140 AD.2d 41 [1988, 2d Dept.]).
Under Article 81 of the Mental Hygiene Law, the determination as to whether a guardian should be appointed is subject to the discretion of the court.A guardian should be appointed if and when the court determines that such appointment is necessary to provide for the personal needs of the person (including food, clothing, shelter, health care or safety) or management of property and financial affairs, and second, whether the person agrees to the appointment or is "incapacitated" (MHL §81.02 [a]). By statute, the court is required to consider the report of the court evaluator (MHL §81.02 [a]) as well as the "sufficiency and reliability of available resources (MHL§81.09[c]) to provide for personal needs or property management without the appointment of a guardian." (MHL §81.02 [a]). "Available resources" include care providers as well as "powers of attorney, health care proxies, and trusts" (MHL §81.03 [e]); (see also Matter of Daniel TT 39 AD3d 94).
Assuming that incapacity is established, a guardian is to be appointed only as a last resort and in a manner which is the least restrictive form of intervention (MHL §81.02 [a]); (see also Matter of Joseph V., 307 AD2d 469 [2003]). Contrary to the assertions of petitioner, the expressed preference of the AIP, while a factor to be considered by the court, is not dispositive on the issue as to whether a guardian should be appointed.
In the case at bar, the court evaluator prepared a lengthy report which included her findings based on two home visits with the AIP, interviews with the AIP's other siblings, consultations with the AIP's physicians, and review of legal and medical records relating to the proceeding. The court also heard testimony of the Court Evaluator on February 7th, February 23, April 27 and April 28, 2011.
The court evaluator's report indicates that the AIP suffers from advanced multiple sclerosis. His health experienced a precipitous decline in 2004. During this time period, the AIP was cared for primarily by his sister, Risa Katz, at his home located at 1406 Avenue N, Brooklyn, NY. When Etta Schwarz, the matriarch of the Schwarz family had a heart attack sometime in 2004, the AIP and his sister Risa moved to their mother's home at 1402 Avenue N, Brooklyn, NY, where Risa Katz continued to be the AIP's care provider. Since April 2007, the AIP has resided continuously at the home of the cross petitioner located at 864 E. 23rd Street, Brooklyn, NY. It is a two family home and the AIP resides there with Helene Schwarz, her husband, Dr. Jack Kartaginer, and the matriarch of the family, 83 year old Etta Schwarz.
Presently, the AIP requires 24 hours /7 day home care by four home health aides to assist in all daily activities. The AIP is legally blind, has a feeding tube and must be periodically suctioned, so that he does not choke on his own phlegm; the AIP cannot walk, groom or feed himself. He is bedridden and lies on a hospital bed which inflates with an air pump. He must be repositioned every half hour in order to prevent bed sores.
The Court Evaluator consulted five treating physicians of the AIP. These physicians include Dr. Levine, a neurologist, Dr. Himel, a wound care physician, Dr. Sadiq, a physician specializing in multiple sclerosis and Dr. Mindel and Dr. Werzberg, who are internists. All concurred that the AIP has advanced multiple sclerosis and is cognitively impaired. Dr. Himel also opined that it would be detrimental for the AIP to be re-located from his sister's home. The Court Evaluator also reviewed a report of Dr. Rimma Danov, a neuropsychologist who denies that the AIP suffers from any cognitive deficits based on her exam of the AIP in October and November, 2005.
The AIP is one of nine siblings, who include Abraham Schwarz, Simon Schwarz, Risa Katz, Helene Schwarz, Barry Black, Jacob Schwarz and Judy Purcell. One sister, Cindy Schwarz, died from multiple sclerosis several years ago. The AIP has never been married and has no children. The Court Evaluator spoke with all the siblings except Jacob Schwarz and the consensus of opinion is that the AIP should not be relocated from the home of Helene Schwarz because she provides the AIP with great care. Risa Katz is the only sibling who supports the requested relief sought by petitioner. Significantly, Abraham Schwarz, Joshua Schwarz, Judy Purcell, Barry Black specifically noted that their brother and petitioner, Simon Schwarz has been estranged from the family for many years. One sibling stated that petitioner Simon Schwarz is not to be trusted.
The Court Evaluator's report disclosed that the AIP has income consisting of the following: Social Security Income of $2,072 monthly, Disability Insurance of $2,411 monthly, a monthly pension from TIAA-CREFF of an unknown amount. As to assets, the AIP is the co-owner along with Simon Schwarz of 1402 Avenue N, Brooklyn, NY from which the AIP receives rental income. The AIP's expenses include home attendants, medicine, supplies, hospital and doctor fees not covered by Medicare, religious articles, automobile and elevator repairs. This accounting was based on a review of the AIP's bank statements, tax returns and personal records of Helene Schwarz, the AIP's designated agent pursuant to a power of attorney executed on February 10, 2004. Helene Schwarz has been designated a health care proxy for the AIP for medical decisions during his hospitalizations.
While the Court Evaluator supports the appointment of a guardian for the AIP, she also recommends that if the court found the advanced directives presently in effect sufficient, there may be no need to appoint a guardian.
The Court also considered the findings of its court appointed independent psychiatrist, Dr. James Lynch, in assessing the merits of petitioner's contentions. Dr. Lynch conducted a Comprehensive Psychiatric Assessment of the AIP on November 10, 2010. As part of his assessment, Dr. Lynch reviewed legal and medical documents and consulted with parties related to this proceeding. Dr. Lynch testified on February 7, 2011 and a report containing his findings was submitted into evidence. Dr. Lynch found that the AIP was disoriented upon evaluation, since the AIP was unable to cite the current year and month or his age. On formal memory testing of the AIP, Dr. Lynch found that there were impairments in attention, concentration and memory recall. Based on his findings, Dr. Lynch rendered a diagnosis of cognitive disorder secondary to multiple sclerosis, with a severe degree of disability. Dr. Lynch opined that the AIP could not have executed a Power of Attorney with capacity in January 2010.
To further aid the court in its assessment, the court conducted a personal interview with the AIP on March 21, 2011 at 864 East 23rd Street, Brooklyn, NY, the residence of the AIP and the home of cross-petitioner. The AIP occupies a large room located on the second floor of the cross-petitioners' spacious home. The court found the home to be clean, well maintained, and overall warm and comfortable. The AIP's room was consistent with the condition of the rest of the house and was immaculate. Significantly, the court noted that the AIP's room is comparable to a room at a skilled nursing facility. The room was well lit. Medical equipment utilized for cleaning, suctioning, and monitoring the AIP were in plain view. A well stocked storage area for supplies existed in the rear of the room. The bathroom is handicapped accessible. There is an outside terrace that has an elevator lift for the purpose of transporting the AIP from his room to the van in the driveway of the house.
When the Court arrived, the AIP was in a hospital bed watching a large flat screen television. His television is positioned directly across from the bed. The wall adjacent to his bed contain photographs of the AIP in years prior to his illness where he is standing and fully engaged. The AIP was clean and well kept, however, physically, he was extremely frail. The AIP was alert, and at times, witty. His responses to some questions, were often accompanied by flowery expressions of praise or emotion. While he acknowledged the reason for the Court's visit was to consider whether a guardian should be appointed, (March 21, 2011 Transcript, P. 13), he also defined a guardian as being a "watchman". But at times, he was also confused and disoriented. For example, when asked the question whether he lives by himself, he responded "yes", (March 21, 2011 Transcript, P. 10). He stated that his mother feeds him (March 21, 2011 Transcript, P. 10). When asked if he needs assistance to go to the bathroom, to eat, to turn, he responded "I do that myself". In fact, the opposite is true. Of particular significance to the issue at hand is the following colloquy between the AIP and the Court:
(March 21, 2011 Transcript, P. 17):
The Court: Sir, if you had a choice of having either your brother or sister take care of you who—-
The AIP: My brother.
The Court: —would you select, who would you choose?
The AIP: My brother.
The Court: Why is that, sir?
The AIP: Because the rest of the things he can do that my sister can't.
The Court: And what can he do?
The AIP: Take me to synagogue.
The Court: You stated your brother can take you to synagogue where your sister cannot take you to synagogue?
The AIP: She stays in the women's section.
The interview concluded after 45 minutes since the AIP appeared to be extremely fatigued.
On June 1, 2011 the hearing resumed in court on petitioners' direct case and Dr. Steven K. Hogue, a board certified clinical and forensic psychiatrist, and Michael Katz, the AIP's nephew testified.
Dr. Hogue testified that when conducting a competency evaluation a patients' level of understanding must be determined. He opined that in such cases it is desirable to conduct more than one psychiatric evaluation. Notably, Dr. Hogue testified that in addition to background and history of the AIP, he would consider any allegations of psychological coercion raised in the petition in the course of making a competency determination or an evaluation as to whether the AIP required a guardian. Dr. Hogue further opined that Dr. Lynch's finding that the AIP lacked capacity to execute the January 21, 2010 Power of Attorney was conclusory since it was based on a retrospective assessment of the AIP's competency. He opined that such an assessment was a difficult undertaking given the AIP's fluctuations in mental status. Accordingly, the court directed Dr. Hogue to conduct an in home evaluation of the AIP and instructed the parties to arrange scheduling for the doctors' visit. Petitioner's oral application for the interview of the AIP to be conducted at Dr. Hogue's office was denied.
Michael Katz, the son of Risa Katz and nephew of the AIP and petitioner, Simon Schwarz, testified that he was very close to the AIP, particularly during the years of 2001-2004, which coincided with the onset of the AIP's Multiple Sclerosis symptoms. During that time, he saw the AIP on a regular basis, they studied religion together and the AIP helped him prepare for Bar Mitzvah. He also testified that his mother once was the AIP's primary caretaker at his apartment located at 1402 Avenue N, Brooklyn, NY. As the AIP's health physically worsened in 2008, Helene Schwarz became the AIP's primary caretaker at her home located at 826 East 83rd Street, Brooklyn, NY, and Risa Katz would assist as needed when she visited the AIP. Mr. Katz stated that after the AIP's move to 826 East 83rd Street, Brooklyn, NY, Helene Schwarz became critical of any attempts of Risa Katz to care for the AIP. Mr. Katz indicated that Helene Schwarz became visibly rude and offensive to him, his mother Risa and his uncle Simon when they visited, causing the relationship between he and Helene Schwarz to become strained. Further, he testified that there were occasions that Helene Schwarz and her husband screamed at his mother, his uncle, and him and that this conduct had the effect of intimidating and isolating the AIP from these three relatives. According to Mr. Katz, all of the AIP's other siblings merely gave the AIP a passing interest, visiting him infrequently, if not at all.
III. DISCUSSION
Viewed in a light most favorable to the claims raised in this guardianship matter, petitioner has failed to establish that the appointment of a guardian for Samuel Schwarz, the AIP, is the least restrictive intervention.
The evidence establishes that the AIP is unquestionably incapacitated. He is unable to provide for his personal needs and property and cannot adequately understand and appreciate the nature and consequence of such inability (MHL § 81.02 [b]).The degenerative effects of multiple sclerosis has resulted in an active, independent, and intellectually sound man becoming totally dependent on others for the activities of daily living. Petitioner acknowledges that the AIP has cognitive deficits but argues that such deficits "have not impaired the [AIP's] judgment to the extent required to be declared incapacitated in law for transactional or contractual purposes." (Petitioner's Order to Show Cause dated July 14, 2010) However, no credible evidence was provided in support of this position.
Petitioner's expert witnesses provided little, if any, probative evidence. Dr. Reimer Danov's testimony was stricken. It is well settled that striking the testimony of a witness who fails to return to court to be examined and subsequently cross-examined is proper because it deprives the other party the opportunity to cross-examine a critical witness. (see Schwartz v 38 Town Associates, 87 AD2d 377 [1st Dept, 1992]). Further, the findings of Dr. Steve K. Hogue are inconclusive since he did not conduct the in-home assessment of the AIP which was ordered by the court on June 1, 2011 for the purpose of confirming his initial findings.
The case law has consistently established that even if incapacity is established, a guardian is to be appointed only as a last resort and in a manner which is the least restrictive form of intervention (see MHL § 81.02 [a][2]); (see also Matter of Joseph V. , 307 AD2d 469, 470 [2003]). Such an appointment may be obviated where the alleged incapacitated person have effectuated plans for the management of their affairs and are possessed of sufficient resources to protect their well-being (see Matter of Isadora R., 5 AD3d 494 [2004]; Matter of Albert S., 286 AD2d 684 [2001]; Matter of Maher, Matter of S.K., 13 Misc 3d 1045 [2006]; Matter of A.C. 12 Misc 3d 1190[A], 2006 NY Slip Op 51508 [U] [2006]), (MHL § 81.02). Such resources have been defined to include a power of attorney, health care proxy, and/or a home health aide. (MHL § 81.03 [e]).
Contrary to the assertions of petitioner there is no evidence in the record that these advance directives were obtained by duress, coercion, or fraud.
In the instant matter, advanced directives were executed by the AIP appointing Helene Schwarz as agent on behalf of the AIP, Samuel Schwarz, when his condition began to decline over seven years ago. During his hospitalizations, Helene Schwarz was designated the AIP's health care proxy for health care decision making. There is no indication that such proxy has been revoked. Further, the February 10, 2004 power of attorney also coincides with the period of time that the AIP could no longer live independently and was compelled to relocate to his family home at 1402 Avenue L, Brooklyn, New York and then to the home of Helene Schwarz at 864 East 23rd Street, Brooklyn, New York.
The court finds that the AIP's existing advance directives afford him a high quality of comprehensive medical care whose cost exceeds the AIP's income, (Court Evaluator's Report, Page 4). The existing advance directives allow for the management of the AIP's daily activities of living, his personal needs, his finances, and property, and is consistent with the statutory goal of requiring dispositions which are the least restrictive form of intervention (MHL § 81.01). The court notes that while the AIP expressed a preference for petitioner to become his guardian, due to his lack of capacity, the AIP was unaware of the myriad of services required to support all of his activities of daily living and current level of care.
Significantly, the court finds that the power of attorney dated January 21, 2010, which names Simon Schwarz as agent of the AIP, is invalid as a matter of law and therefore, does not revoke the existing advanced directives, naming Helene Schwarz as agent. Not only does the January 21, 2010 power of attorney contain numerous technical defects in contravention of GOL 5- 1501, perhaps the most egregious fact is that the document was admittedly obtained under false pretenses demonstrated by the following:
(Transcript dated February 7, 2011)
(P. 126, Lines 2-3): Mr. [Simon] Schwarz: You don't have to execute [the power of attorney] in front of a notary public. You have to acknowledge it.
(P. 126, Lines 9-11): Mr. [Simon] Schwarz: ....[I ] had to work out a trick where I had to get [the power of attorney] signed one day and acknowledged the next day.
Further, the court finds Petitioners' allegation that Helene Schwarz has misappropriated the AIP's income or engaged in financial mismanagement of the AIP's assets utilizing the February 10, 2004 power of attorney wholly without merit. The court evaluator found no evidence of fraud or conversion based on a review the AIP's recent bank statements and tax returns, together with a consultation with the AIP's financial advisor and accountant.
Finally, petitioners' claims that he and his sister, Risa Katz, are unable to freely visit the AIP based on impediments and interferences to their visits by Helene Schwarz and her husband, that has resulted in the social isolation of the AIP is similarly unfounded and without legal or factual basis. First, little weight can be given to the testimony of Michael Katz on this issue, since the court questions his impartiality based on his close relationship with his uncle and mother. The record establishes that Helene Schwarz has provided a environment in which the AIP receives appropriate social stimulation which includes provisions for his spiritual needs. The AIP regularly "SKYPES" with his siblings who live outside of the United States, and in adherence to his religious faith, the AIP, a Talmudic scholar, is visited four times each day by a Rabbi. Thus, the court finds the petitioner's claim of social isolation without a legal or factual basis. While the court acknowledges that petitioner's ability to visit the AIP has been an on-going issue in this proceeding, the court declines to compel continuous access where the petitioners' visits would be disruptive to the stability of the AIP's environment and is contrary to the best interests of the AIP. In this regard, it should be noted that all of the siblings except Risa Katz, indicated that petitioner has been estranged from his family for years and that the record reflects a relationship among siblings that is fraught with in-fighting and characterized by acrimony, discord and disharmony. The court finds it instructive that Risa Katz was noticeably absent throughout the proceeding, while in petitioner's prayer for relief, he requested that Risa Katz replace Helene Schwarz as primary caretaker for the AIP.
Against this backdrop, the court finds that the petitioners' conduct throughout the course of this proceeding exceeded the bounds of zealous advocacy. The petitioner was extremely augmentative, often times acting in blatant disregard of the court's rulings and admonitions. Additionally, petitioner by his words and deeds demonstrated that he was not acting in good faith.Dissatisfied with the AIP's existing advance directives, petitioner attempted to revoke the February 10, 2004 power of attorney that had been personally executed by the AIP, under false pretenses. It appears that the purpose of this proceeding was to settle scores and address unresolved issues among siblings rather than advance the best interests of the AIP. As a result of the foregoing, the court finds that the instant proceeding was commenced in bad faith.
The case law has consistently held that in cases where petitioner had knowledge of advance directives and there was no evidence of harm or loss to the alleged incapacitated person, petitioner is responsible to pay for the court evaluators fees. (see, e.g. In re Crump (Parthe), 230 AD2d 850 [2nd Dept. 1996]; In the Matter of Peterkin, 2 Misc 3d 1011(A) [1st Dept.1998]; Matter of Rocco, 161 Misc 2d 760 [Sup. Ct., Suffolk Co., 1994]).
The court evaluator diligently and consciensously performed her services in this difficult guardianship proceeding. Long hours were spent interviewing ten family members and dissecting a long and complicated family history. Multiple doctors were consulted and two in-home visits of the AIP were conducted. The seriousness of the allegations coupled with the contentiousness of the parties resulted in protracted year long proceeding, wherein the court evaluator made eleven court appearances. This number does not include her appearances before Hon. Larry Martin in the initial habeas corpus proceeding commenced by petitioner. This court evaluator was subject to a heightened level of accountability due to a hostile petitioner who subjected her to rigorous inquiry which, at times, bordered on being accusatory. Under these circumstances, the court evaluator in the instant case, performed work above and beyond what is ordinarily contemplated in such cases.
This court has reviewed the court evaluator's affirmation of services and finds that in view of the unique circumstances of the instant case, that her fee application is fair and reasonable, and should be paid by petitioner in its entirety. (see Matter of Freeman 34 NY2d 1 [1974]).
Pursuant to MHL § 81.09 (c)7, the cost of Dr. James Lynch's services shall be charged to the estate of the AIP.
Based on the foregoing, the cross-petitioner's motion to dismiss is granted.
IV. PETITIONER'S WRIT OF HABEAS CORPUS
Petitioner brought the within Writ of Habeas Corpus seeking an inquiry into the legality of the AIP's residence with Helene Schwarz and her husband, which was consolidated in the instant guardianship matter on April 28, 2011.
Civil Practice Law & Rules § 7002 states, in pertinent part, that a person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf, may petition for a Writ of Habeas Corpus to inquire into the cause of such detention and for deliverance. The Court on a Writ of Habeas Corpus may only examine the legality of one's "confinement". (see People ex rel. DeNormand v. Martin AD 31 [3rd Dept., 1943]).
Petitioner submits identical facts and documentary evidence in support of the relief requested which was contained in his guardianship petition, i.e., social isolation, unlawful detention and confinement. Based on the court's denial of these claims in the guardianship action and, using the same rational, the court finds the claims raised in the within habeas corpus petition equally without merit.Accordingly, it is hereby
ORDERED that cross-petitioner's motion to dismiss is granted; and it is further
ORDERED that petitioner's motion for a writ of habeas corpus is denied; and it is further
ORDERED, that petitioner shall pay, within 30 days of the entry of this order, court evaluator's fees to Julie A. Clark, Esq., 32 Court Street, Suite 707, Brooklyn, New York 11201, in the sum of $18,950.60; and it is further
ORDERED, that if petitioner fails to pay said court evaluator fees within 30 days of the entry of this order, the Clerk of Kings County is directed to enter judgment in favor of Julie A Clark, Esq., and against petitioner, in the sum of $18,950.00, together with statutory interest to be computed by the Clerk; and it is further
ORDERED, that Helene Schwarz on behalf of the AIP, shall pay, within 30 days of the entry of this order, fees for medical reimbursement to Dr. James Lynch, 142 Joralemon Street, Brooklyn, New York 11201, in the sum of $4,275.00.
This constitutes the Decision and Order of the Court.
ENTER FORTHWITH,
____________________________
Hon. Kathy J. King
J. S. C.
The Court Evaluator testified that Simon [Schwarz] had a notary go to the AIP's residence during one of his visits in January, 2010 and pretend to be a rabbi. Simon recounted to the Court Evaluator that Sam [Schwarz] signed the power of attorney the day before only when Simon was present, but the notary came dressed as a rabbi the next day to the house and notarized the power of attorney that [Simon] indicates he has from Sam. (February 23, 2011 Transcript, P. 91, Lines 3-14)