Opinion
101423/2010
03-29-2019
Maritza POVENTUD as Guardian Ad Litem of Ismael Montanez, Plaintiff, v. DEVEREUX FOUNDATION, Patrick Emerson, Devereux Kanner Center, Brian Washington, Leo Kanner Learning Center, Defendant.
Attorneys for Plaintiff: Alan Fraade, Esq., The Mintz Fraade Law Firm, P.C., 260 Madison Avenue, 16th Floor, New York, NY 10016; Regina Darby, Esq., The Law Offices of Regina L. Darby, 111 John Street, Suite 800, New York, NY 10038 Attorney for Defendant: Marie Danek, Esq., Phelan, Phelan & Danek, LLP, 300 Great Oaks Blvd., Suite 315, Albany, NY 12203
Attorneys for Plaintiff: Alan Fraade, Esq., The Mintz Fraade Law Firm, P.C., 260 Madison Avenue, 16th Floor, New York, NY 10016; Regina Darby, Esq., The Law Offices of Regina L. Darby, 111 John Street, Suite 800, New York, NY 10038
Attorney for Defendant: Marie Danek, Esq., Phelan, Phelan & Danek, LLP, 300 Great Oaks Blvd., Suite 315, Albany, NY 12203
Doris Ling-Cohan, J.
It is ORDERED that this Order to Show Cause by plaintiff seeking an order permitting the funding of the Ismael Daniel Montanez Special Needs Trust is denied, without prejudice, for the reasons stated below.
At the outset, the Court notes that despite bearing a 2010 Index Number and that this is the 12th motion filed in this case, this matter was recently transferred into this Part's case inventory, on or about August 2018, after the recusal by Justice David B. Cohen, the judge who initially signed the within Order to Show Cause. Additionally, according to the court's computer records, this matter was settled, prior to trial, on January 9, 2018, before Justice Erika Edwards.
According to the Court's computer records, this case was randomly reassigned to this Part, on or about August 2018, however, the within Order to Show Cause is incorrectly listed as assigned to Part 58, and not to Part 36, and, also does not reflect the issuance of this Court's Interim Order dated August 29, 2018.
Upon initial review of the within Order to Show Cause, as the moving papers were significantly lacking , rather than denying the requested relief outright, as a courtesy, this Court issued an Interim Order dated August 29, 2018, requiring the submission of additional documents/information. Notably, an attorney's affirmation in support of the requested relief had not been supplied in the papers originally submitted with the Order to Show Cause, nor was an approval by HRA of the proposed Special Needs Trust included (see CPLR 1206 - 1208 ). Further, there was no indication in the moving papers that the procedure outlined in CPLR 1206, 1207 and 1208 had been followed, with respect to the settlement of an action involving a person in which a guardian had been appointed, which appears to be necessary in the case herein. Notably, there was also no indication that the settlement of the claim had been approved by the Court after the filing of a Compromise Order, nor that an order of settlement had been issued, as required (see CPLR 1207 ). Moreover, while reference was made in the Order to Show Cause to a General Release dated January 25, 2019, the General Release was not supplied in the initial moving papers.
This Court would have declined to sign the initial Order to Show Cause had it been the signing judge.
After the issuance of this Court's Interim Order dated August 29, 2018, plaintiff submitted additional papers to further support the granting of the requested relief. However, upon review of the additional submissions, and based upon the applicable law, this Court is constrained to deny the within Order to Show Cause, without prejudice, as explained below.
Most notably, while Maritza Poventud, mother of Ismael Daniel Montanez ("Ismael") is labeled in the caption as a "Guardian Ad Litem" of Ismael, no order has been supplied by the movant which actually appointed Maritza Poventud as a "Guardian Ad Litem", which presumably is indicative that the appointment was only for this lawsuit. Rather, the Order to Show Cause contains a copy of a "Certificate of Appointment of Guardian", from the Queens County Surrogate's Court, dated January 12, 2012, appointing Maritza Poventud, as the Guardian of Ismael Daniel Montanez, pursuant to Article 17-A of the Surrogate Court's Procedures Act ("SCPA"), which is titled, Guardians of Persons who are Intellectually Disabled and Developmentally Disabled (see Exh. A, Order to Show Cause). (Exh. A, Order to Show Cause). The Certificate of Appointment further provides that Ismael was born on June 13, 1984, and, thus, was 28 years of age at the time of such appointment, and, is currently 34 years of age.
This Court also has not been able to locate such an order in the Court's computer records.
Guardians appointed pursuant to SCPA 17-A, as it appears to be the case herein, are to be treated in the same way as committees, conservators and Article 81 guardians and, as such, the provisions governing the settlement of claims provided in CPLR 1206 - 1208 are applicable to such an appointed guardian (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC1201:2; Trotta v. Phelan , 161 Misc. 2d 853, 615 N.Y.S.2d 596 [Sup. Ct., Suffolk County 1994] ).
Thus, it appears that the settlement of the within claim involving a guardian appointed pursuant to SCPA 17-A, like a guardian appointed pursuant to Article 81 for an incapacitated person,
"requires court approval, which is applied for with a motion [A]n approval of the settlement results in an order CPLR 1208 prescribes the papers to be submitted and the incidental procedure to be followed. The rules elaborate. These requirements should be carried out to the letter . On the hearing of the settlement application the applicant, the ward, and the ward's attorney must attend before the court "
( Siegel, NY Prac section 200, at 369 [6th ed][emphasis supplied] ). Here, as indicated above, the procedure for the settlement of the subject claim involving an intellectually or developmentally disabled person, as appears to be the case herein, does not appear to have been followed as no "Compromise Order" has been supplied and, thus, the application for a Special Needs Trust is denied, without prejudice to resubmission and compliance with CPLR 1206 - 1208, as required.
This is often commonly referred to as an "Infant or Incompetent's Compromise Order".
Should plaintiff's position be that such statutes/rules are not applicable herein, plaintiff may renew the within application, with a detailed explanation, supporting memorandum of law, and supporting case law.
As such, it is
ORDERED that the within Order to Show Cause seeking an order permitting the funding of the Ismael Daniel Montanez Special Needs Trust is denied, without prejudice, to expeditiously resubmitting and compliance with the provisions of CPLR 1206 - 1208, or, providing a detailed explanation as to why such statutes fail to apply herein, with a memorandum of law and supporting case law; and it is further
ORDERED that this matter will appear on the Court's Calendar on June 13, 2019 , as a control date and the parties need not appear , but shall update this Court by letter, as to the status of this case (The letter shall contain a copy of this order attached to the outside of the envelope containing such letter and shall reference the control date, Attn: Court Attorney Donna Albano, Esq.).