Opinion
Index No. 2021-5569
05-24-2023
In the MATTER OF the Application of Brian HART, LCSW-R, as Commissioner of the Chemung County Department of Social Services, Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for the Appointment of a Guardian of the Person and Property of D.S., an Alleged Incapacitated Person.
James DeFillippo, Esq., of Chemung County Attorney Office, for Petitioner Debra J. Cohn, Vestal, for Respondent A. Laura Bevacqua, Esq., Albany, of Mental Hygiene Legal Service (3rd Dept.), as Court Evaluator Jo A. Fabrizio, Esq., Binghamton, as Court Examiner and Referee
James DeFillippo, Esq., of Chemung County Attorney Office, for Petitioner
Debra J. Cohn, Vestal, for Respondent
A. Laura Bevacqua, Esq., Albany, of Mental Hygiene Legal Service (3rd Dept.), as Court Evaluator
Jo A. Fabrizio, Esq., Binghamton, as Court Examiner and Referee
David H. Guy, J. This matter is before the Court by way of a petition for discharge and Final Report from Brian Hart, Commissioner of the Chemung County Department of Social Services, as Guardian of the Person and Property of D.S. (the "Guardian"), filed on November 8, 2022. D.S., for whom petitioner was appointed Guardian by order of this Court dated September 22, 2021, died a resident of Chemung County on March 7, 2022. The Court appointed Jo A. Fabrizio, Esq. as special referee to examine the final accounting by order dated November 9, 2022. Ms. Fabrizio filed her referee report dated November 18, 2022, indicating no objection to the final report.
The discharge petition recites outstanding debts for legal fees and disbursements to Mental Hygiene Legal Service (3rd Dept.), which acted as Court Evaluator in the proceeding to appoint a guardian, and to Debra J. Cohn, Esq., who was counsel for D.S. The Court directed the payment of $1,168.75 to Mental Hygiene Legal Service (3rd Dept.) by order dated December 6, 2021, and of $15,150 to Debra J. Cohn. Esq. by order dated December 7, 2021, with both payments to be made by the petitioner, as Guardian, from the resources of D.S. No portion of those ordered payments was made, despite the guardian receiving the orders and having available resources in the guardianship, per the initial report filed by the Guardian in December 2021.
The discharge petition also recites a fee of $500 owed to Jo A. Fabrizio, Esq., as court examiner, for her review of the 2021 annual report. The Court confirmed with the Appellate Division that the actual fee awarded should have been $250 for review of that annual report, and the Appellate Division issued a new order directing that amount on December 20, 2022. Being made aware by the petition that the previously ordered counsel fees were not paid and the Court's orders were thus not complied with by the Guardian, the Court convened an attorney's conference via Microsoft Teams on December 20, 2022, at which time James DeFilippo, Esq. appeared on behalf of the Guardian; A. Laura Bevacqua, Esq. appeared on behalf of Mental Hygiene Legal Service (3rd Dept.); Jo A. Fabrizio, Esq., court examiner and referee, appeared; and Debra J. Cohn, Esq. appeared. The Court determined, on the record, confirmed by Decision and Order dated December 20, 2022, that the remaining amount of funds on hand per the Guardian's final report, set forth as $4,956.04, was to be paid toward the outstanding fees as follows:
- $250.00 to Jo A. Fabrizio, Esq.;
- $1,168.75 to Mental Hygiene Legal Service (3rd Dept.);
- $3,537.29 to Debra J. Cohn, Esq.
The Court received proof of those payments by letter dated February 1, 2023, from James DeFilippo, Esq., on behalf of the Guardian. With these payments, Ms. Fabrizio and Mental Hygiene Legal Service (3rd Dept.) were paid in full, and Ms. Cohn received less than a third of the fee the Court had ordered be paid to her for the work she completed on behalf of D.S. as his court-appointed counsel in the proceeding to appoint a guardian.
The Court's December 20, 2022 Decision and Order held in abeyance the discharge and potential surcharge of the Guardian, to allow the Guardian the opportunity to obtain further information from MetLife, the company paying an annuity for the benefit of D.S. It appears there remain two lump sum payments on the annuity, the first payable in August 2023, potentially available to pay the outstanding Court-ordered fees, but the Guardian had not obtained the structured settlement agreement and any beneficiary designation information. The Guardian was directed to report to the Court within 30 days as to the requested information from MetLife. MetLife issued a letter dated December 22, 2022 indicating that it needed documents naming an administrator or executor of D.S.’s estate before it could provide any information.
The Court agreed to hold the discharge petition in abeyance for another 30 days and directed the Guardian to file a petition in Surrogate's Court for the appointment of an administrator of D.S.’s estate, who would have authority to obtain the necessary information from Metlife. On May 5, 2023, the Court confirmed with the Chief Clerk of the Chemung County Surrogate's Court that no petition for the appointment of an administrator for the estate of D.S. has been filed.
The Court is now surcharging the Guardian in the amount of $11,612.71, the balance of the Court-ordered fee still due to attorney Cohn. Analogizing this discharge petition to a final accounting for an estate or trust, the fee of a Court-appointed referee or Guardian ad Litem, like other administration expenses, is a priority expense. The legal fees rendered, in this case on behalf of an incapacitated person whose assets flowed into a guardianship estate, are entitled to priority over other administration expenses and debts. SCPA 1811. Matter of Tangerman , 226 A.D. 162, 235 N.Y.S. 213 (3d Dept. 1929) ; Matter of Mowbray 4 Misc.2d 844, 159 N.Y.S.2d 123 (Sur. Ct., Westchester County 1956).
In December 2021, when the Court issued the fee orders, there were sufficient funds available from which to pay these fees, which have priority for payment in an Article 81 proceeding. As a matter of public policy, it is of the utmost importance to this Court, as well as for those who are alleged to need guardians, that the legal fees incurred in these matters receive priority for payment by guardians. Ms. Cohn expended a substantial amount of effort in representing D.S. in this case, and it would be an inequitable result to expect Ms. Cohn to absorb the loss of the fee she is owed due to the Guardian's unexplained failure to follow the Court's December 6 & 7, 2021 orders directing the payment of her fee and the Court Evaluator fee from D.S.’s resources.
The initial report of the Guardian, dated December 20, 2021, two weeks after the fee orders were issued, shows the guardianship account had $18,866.21 on hand at that time, more than enough to pay all the ordered fees, and was receiving funds from the Metlife annuity in the amount of $5,000 per month and social security income of $1,059 per month.
The Court provided the Guardian ample opportunity to investigate the existence and availability of other assets from the estate of D.S. from which to satisfy the balance of the outstanding legal fee, which it has failed to do. The Guardian is now surcharged in the amount of the balance owed to Debra J. Cohn, Esq., $11,612.71.
This result does not foreclose the ability of the Guardian to pursue the opening of an estate for D.S. to explore the existence of additional annuity or other funds due the estate, for repayment of the surcharge.
The Guardian is directed to pay Ms. Cohn $11,612.71 within fifteen (15) days of the date of this order and is directed to submit proof of the same to the Court within five (5) days of the payment.
This Decision constitutes the Order of the Court.
In furtherance of this Decision, it is hereby
ORDERED, that Brian Hart, Commissioner of the Chemung County Department of Social Services, as Guardian of the Person and Property of D.S., shall pay to Debra J. Cohn, Esq. the amount of $11,612.71; and it is further
ORDERED, that this payment shall be made within fifteen (15) days of the date of this order, and counsel for the Guardian shall file a letter indicating such payment was made within five (5) days of the payment being made; and it is further
ORDERED, that the Final Report of the Guardian as rendered and filed is correct and the same is hereby finally judicially settled and allowed and shall be filed and recorded. The following is a summary statement of the final account so settled and allowed:
| PART I | |
| Total beginning balance, as shown on Schedule A | $12,870.42 |
| Total additional assets, as shown on Schedule B | $0 |
| Total income received during accounting period, as shown on Schedule C | $18,565.94 |
| TOTAL PART I | $31,436.36 |
| PART II | |
| Total losses during accounting period, as shown on Schedule D | $0 |
| Total monies paid out during accounting period as shown on Schedule E | $26,480.32 |
| TOTAL PART II | $26,480.32 |
| BALANCE ON HAND AT END OF ACCOUNTING PERIOD:(Total Part I minus Total Part II) | $4,956.04 |
and it is further
ORDERED, that the Court acknowledges there is no money now left in this guardianship, as it was directed use those funds to pay outstanding fees in the Court's decision and order dated December 20, 2022; and it is further
ORDERED, that upon making the above ordered payment to Debra J. Cohn, and providing proof thereof to the Court, Brian Hart, Commissioner of the Chemung County Department of Social Services, as Guardian of the Person and Property of D.S., is discharged as to all matters embraced by the final account of the Guardian.