Opinion
901866-18
09-17-2018
Caren KOTLOW, Michael Hanft, and Sara Salitan-Thiell, Petitioners, v. Steven HANFT, Respondent.
The Wagoner Firm, Attorneys for the Petitioner, By: Matthew Wagoner, Esq., 150 State Street, Albany, New York 12207 Kevin Engel, Esq., Attorney for Respondent, 738 Columbia Turnpike, East Greenbush, New York 12061
The Wagoner Firm, Attorneys for the Petitioner, By: Matthew Wagoner, Esq., 150 State Street, Albany, New York 12207
Kevin Engel, Esq., Attorney for Respondent, 738 Columbia Turnpike, East Greenbush, New York 12061
David A. Weinstein, J.
Background
I. The Petition
This special proceeding was commenced by petition filed by petitioners Caren Kotlow, Michael Hanft ("MH") and Sarah Salitan-Thiell, naming as respondent Steven Hanft ("SH"). Petitioners allege that SH, who holds the power of attorney ("POA") for Beatrice Glucksman — petitioners' grandmother and respondent's mother — is unfit to exercise that power as he has converted her assets, depleted her estate, and engaged in various wrongful actions for his personal benefit and to the detriment of Ms. Glucksman and her heirs. The petition seeks to revoke respondent's power of attorney; compel respondent to provide an accounting and record of all transactions entered into by him in regard to Glucksman's assets; order him to "deliver any property belonging to Ms. Glucksman to her"; bar him from acting as executor of Glucksman's estate; and direct Adult Protective Services ("APS") to commence an investigation into elder abuse by respondent, pursuant to Social Services Law ("SSL") §§ 473(6)(c) and (g).
Her husband, Andrew Kotlow, has filed two affidavits in this proceeding. All references to "Kotlow" are to Ms. Kotlow, and those to her husband refer to his full name or to Mr. Kotlow.
The matter is now before me on cross motions by respondent to dismiss the petition, and by petitioners to disqualify respondent's counsel.
The core allegation of the petition is that Mr. Hanft has used his position as power of attorney, as well as verbal abuse and forged documents, to "threaten[ ], manipulate[ ], and coerce[ ]" the 95-year-old Ms. Glucksman to take steps against her interest and those of petitioners, and in the interest of respondent (Pet ¶ 34). As alleged, these include:
• Getting her to fire her long-time attorney Thomas Kenney, Esq. and replace him with Kevin Engel, Esq., counsel for respondent in this proceeding;
• Forging her name to documents, including a letter to her attorney and a form allowing him access to her medical records;
• Removing Glucksman's jewelry from her safe deposit box and keeping it in his possession;
• Directing the Avila Retirement Community ("Avila"), where Glucksman resides, to send her $ 300,000 security deposit to him or his wife upon her death; and
• Attempting to move her into a smaller apartment.
The supporting affidavits make various other allegations, including that respondent uses his mother's funds for personal expenses, and attempted to persuade her to maintain her car for his use after she was no longer able to drive (Kotlow Aff ¶¶ 117-121, 127).
A copy of the POA is included in the record before me. It is signed by Ms. Glucksman and notarized on June 16, 2015. The POA appoints SH as her agent and designates petitioner Kotlow as his successor, to which Kotlow assented via her signature (see Kotlow Reply Aff, Ex A).
Each petitioner has provided an affidavit in support of the petition. By way of background, they assert that when their father Judge Richard Hanft ("RH") — Ms. Glucksman's son and SH's brother — passed away in 2015, they each pledged to take care of their grandmother (see e.g. Kotlow Aff ¶ 4). During the mourning period, SH expressed an interest in becoming the POA for Ms. Glucksman (id. ¶ 35). Although following her father's death Kotlow, with Salitan-Thiell's assistance, served as the "primary caretaker for [Glucksman's] needs," petitioners contend that SH interfered with that relationship and made it "extremely difficult" for them to assist their grandmother (id. ¶ 40, 46, 51). Ultimately, petitioners allege that respondent shut them out of a relationship with their grandmother entirely, and manipulated her to his financial benefit. The specifics of these claims are addressed in more detail below.
In a separate supporting affidavit, Kotlow's husband Andrew describes the efforts his wife made on her grandmother's behalf in preparing for her move to Albany and assisting her with medical care and other needs upon her arrival upstate. The affidavit also portrays respondent as rude, obnoxious and self-concerned in his interactions with Kotlow, criticizing Glucksman's move to Albany solely from the perspective of the inconvenience it caused him, continually complaining about everything petitioners did in regard to their grandmother and attempting to restrict their involvement in her life.
The petition is also accompanied by a sworn and notarized "Document Examiner Letter of Opinion" authored by Robert Baier, identified as a Forensic Document Examiner with Handwriting Services International (the "Baier Report"). As set forth in more detail below, the Baier Report examines two documents bearing signatures by Glucksman, and finds that the signatures and certain printed elements thereof were likely not made by her.
The primary legal basis for the petition is General Obligations Law ("GOL") § 5-1510 (f). That provision, part of Title 15 governing powers of attorney generally, allows certain parties to commence a special proceeding "to remove the agent upon the grounds that the agent has violated, or is unfit, unable, or unwilling to perform, the fiduciary duties under the power of attorney."
Specifically, it is in Chapter 24-a, Article 5, Title 15 of the GOL.
Respondent answered the petition and submitted affidavits in opposition by himself and Ms. Glucksman.
In his affidavit, SH states that he lives in Germany, and stays with his mother 40 to 50 days a year (SH Aff ¶¶ 1, 5). He was appointed sole Power of Attorney after his brother's death in 2015 (id. ¶ 8). He denies stealing or abusing his mother, and avers that she manages her own financial affairs, including banking transactions and housing decisions (id. ¶ 14). SH also accuses petitioners of various misdeeds, including making a false report regarding his mistreatment of Glucksman to Albany APS — which ultimately closed the case against him — and ignoring him and his mother when they meet (id. ¶¶ 22, 27). SH denies that he has ever used the POA or executed any documents on his mother's behalf in that capacity (id. ¶ 12). Therefore, according to SH, he "[has] no receipts or similar records" relating to the POA (id. ).
For her part, Ms. Glucksman attests in her affidavit to having a loving relationship with respondent and also estimates that she sees him 40-50 days per year (Glucksman Aff ¶¶ 1, 7). She states that the decision to name SH as power of attorney was hers alone, and not influenced by him or anyone else (id. ¶ 11). Further, she reiterates SH's assertion that he has never used the POA to her knowledge, nor has he "stolen or abused [her] finances," which she handles herself (id. ¶¶ 12-13).
In the affidavit, Glucksman says that the decisions to change legal advisors and to close her safe deposit box and remove the jewelry therefrom were hers alone (id. ¶¶ 14-15). She also asserts that petitioners have "endangered [her] well-being and caused [her] a great deal of emotional distress" (id. ¶ 23). In this regard, she cites letters written in 2017 by petitioners Kotlow and Salitan-Thiell. In those letters, the writers expressed frustration and sadness about the way they had been treated by Glucksman, blame SH for the problems in their relationship, and reference the dispute regarding where Ms. Glucksman's jewelry should be stored (id. ¶¶ 24-25 & Exs A & B).
Ms. Kotlow's letter also makes reference to "no longer [being] on [Glucksman's] POA, per [her] decision" (id. , Ex A). The meaning of this reference is not entirely clear in the papers before me, but presumably refers to SH's indication to MH, discussed below, that he would take over from Kotlow as the successor POA.
Respondent now moves to dismiss the petition on several grounds: (1) it fails to state a claim; (2) petitioners lack standing; (3) petitioners lack "legal capacity" to seek the revocation of respondent's status as executor; and (4) petitioners' application for an investigation by APS is barred by the doctrines of res judicata and collateral estoppel.
In opposition to the motion to dismiss, petitioners present reply affidavits from Caren and Andrew Kotlow and Salitan-Thiell, along with numerous supporting exhibits. These affidavits primarily address various contentions made in respondent's papers regarding the nature of petitioners' relationship with Glucksman, and seek to support their assertions that they maintained a close relationship with their grandmother until it was poisoned through the machinations of SH, and that SH had manifested an "utter lack of care for Ms. Glucksman's needs" (see Kotlow Reply Aff ¶ l19; see generally Salitan Thiell Reply Aff). Petitioners also cross move to disqualify respondent's counsel on the grounds that his prior representation of Glucksman in some of the financial matters at issue creates a non-waivable conflict of interest with his present role on behalf of SH, and he is a crucial witness to some of the events at issue.
Mr. Kotlow's reply affidavit (and much of Kotlow's reply affidavit) addresses an allegation raised by Ms. Glucksman and SH, who claim that he entered her house uninvited in the middle of the night, and "terrified [her] by yelling and screaming" at her (Glucksman Aff ¶¶ 26-27). Mr. Kotlow vociferously denies these claims in his affidavit. For purposes of the motion to dismiss, I will presume the veracity of Kotlow's denial, and the alleged episode has no relevance to my rulings below.
Before addressing these motions, it is necessary to provide some detail regarding the primary incidents at the heart of the petition, and respondent's answers to them.
II. The Specific Allegations
A. Ms. Glucksman's Jewelry
Petitioner's affidavits set forth the following account regarding Glucksman's jewelry: Until Richard Hanft's death, this jewelry had been kept in his safe deposit box (Kotlow Aff ¶ 60). Petitioners state that they learned that as his heirs, the contents of the box belonged to them (id. ¶ 61). Since they believed it right that their grandmother should remain in possession of her jewelry, they signed the box over to her name (id. ¶ 62). They allege that respondent wanted the jewelry to be removed from the box altogether so "on information and belief, he could take it for himself or sell it" (id. ¶ 66).
Since most of the information on this issue contained in the MH and Salitan-Thiell Affidavits is set forth with some more detail in the Kotlow affidavit, I cite to that, with reference to the others when the affiant has specific knowledge of the particular details at issue.
Kotlow states that when the Kotlows brought her grandmother and respondent to the bank to view the jewelry, SH became abusive and assaulted Mr. Kotlow (id. ¶ 69). Ultimately, in May 2017 Ms. Glucksman asked that she be able to retrieve the jewelry and it was removed from the bank (id. ¶¶ 72-73). Salitan-Thiell asserts regarding these events that when she called her grandmother on May 24, "she began speaking badly about [Kotlow], yelling at [Salitan-Thiell], and eventually threatening to call the police about the whereabouts of her jewelry using repeating [sic] Respondent's mantras" (Salitan-Thiell Aff ¶ 115). Petitioners attribute these actions by Glucksman to demands made upon her by respondent (Kotlow Aff ¶ 66).
Subsequently, Avila staff indicated via email that Ms. Glucksman was upset because her diamond ring was missing (Kotlow Aff, Ex 1). According to Kotlow, she learned from her grandmother's home health aide that SH told Glucksman: "Mom, don't you remember? I put it elsewhere" (id. ¶ 75). Kotlow states that the jewelry "has not been seen by anyone" since it was removed from the safe deposit box and expresses the belief that SH took it "for his own personal gain," although she does not offer other evidence for this view (id. ¶ 99).
For his part, SH asserts that the decision to close the safe deposit box was his mother's entirely, and appears to indicate that she is currently in possession of the jewelry (SH Aff ¶ 16), an assertion echoed by Glucksman (see Glucksman Aff ¶ 15 ["I am fully capable of caring and safekeeping the jewelry in my possession as I am currently doing"] ). In support of these claims, he submits the letters written in 2017 by petitioners Kotlow and Salitan-Thiell. In addition to the matters discussed above, those letters make clear that Glucksman herself asked that the jewelry be removed from the safe deposit box. For example, Salitan-Thiell states in her letter that Glucksman threatened to sue petitioners over the issue and said that the jewelry was more important than her grandchildren (see Glucksman Aff, Exs A & B).
B. The Alleged Forgeries
Petitioners also contend that respondent falsified Glucksman's signature on two documents. The first was a St. Peter's Health Partners Medical Associates Patient Confidentiality Waiver signed in May 2016, which named SH as an individual with whom the Hospital could share information on Glucksman's treatment (see Pet ¶¶ 54-60). The form indicates that the hospital is barred from providing medical information on Glucksman to any individual not designated thereon (Baier Report, Ex 1). Petitioners assert that since Kotlow and Salitan-Thiell were "actively involved" in Glucksman's health care at the time, the form denied the hospital the opportunity to "communicate with Ms. Glucksman's primary caretakers" (Pet ¶¶ 59-60). According to Salitan-Thiell's affidavit she and her sister were denied access to medical information about their grandmother until Glucksman signed a revised form (Salitan-Thiell Aff ¶ 45-49; see also Kotlow Aff ¶¶ 78-79 & Ex 3). Salitan-Thiell states that Glucksman denied signing the prior form, the one SH allegedly forged (Salitan-Thiell Aff ¶ 50).
Petitioners argue that since Glucksman's signature was placed on the initial form by SH, and it cut Kotlow and Salitan-Thiell off from information about their grandmother's medical treatment at a time they were the primary parties assisting her therewith, this action demonstrates respondent's irresponsibility and "clear lack of foresight" (Pet ¶ 61).
In Baier's report, he states that the "printed writings" on the patient confidentiality form were "probably" written by SH, based on an analysis and comparison with exemplar's of Glucksman's and SH's writings (Baier Report at 3). He further suggests that there are "indications" that the signature was not placed there by Glucksman, including differences with exemplar signatures, but offers no more definitive opinion in this regard (id. at 2).
Baier also opines that the signature purporting to be their grandmother's on a letter to attorney Kenney in January 2017 was "probably" not hers (id. ; see also Kotlow Aff ¶ 81 [SH "likely forged" her signature] ). That letter terminated Kenney's representation; contested a bill he had sent; and sought the return of certain documents.
Finally, Kotlow avers that SH sent an email in Glucksman's name on January 20, 2017 informing the grandchildren of Kenney's termination; indicating that there would be no changes to her will; stating that SH would remain POA and health care proxy with Kotlow as the alternate; asking that family members cease fighting; and requesting that they all attend a meeting at her apartment (Kotlow Aff, Ex 4). Kotlow notes certain characteristics of the e-mail reflecting SH's style, and says that her grandmother admitted during a later meeting that SH sent e-mails from her account, and denied that she had sent this email and others (Kotlow Aff ¶¶ 84-85).
C. The Change of Attorneys and Estate Plan
According to the petition, from 2005 on Glucksman employed Kenney as her attorney, an arrangement established by her deceased son (Pet ¶ 29). Petitioners contend that SH found he "could not control" Kenney; Kenney would not "allow him to orchestrate ... modifications of Ms. Glucksman's estate plan"; and he opposed the withdrawal of jewelry from the safe deposit box (id. ¶¶ 31-33). Therefore, petitioners maintain that SH "threatened, manipulated, and coerced Glucksman" to terminate Kenney, although she expressed to Salitan-Thiell her desire to continue working with him (id. ¶¶ 34-35, 40). Specifically, petitioners claim that respondent threatened Glucksman that he would never speak to her again if she did not follow his instructions (id. ¶ 36).
As a result, SH "forced" Glucksman to retain a Long Island attorney named Bruce Belsky, whom she later dismissed (id. ¶¶ 37-38). SH then allegedly "forced" her to hire his counsel in this action, Kevin Engel (id. ¶ 41). According to the petition, Engel and respondent worked to change Glucksman's will, advanced directives and other documents in SH's favor, contrary to Glucksman's previously expressed desire to split her estate evenly between petitioners and respondent (id. ¶ 43-45).
Kotlow attests that the POA was amended to list SH as "the sole agent" while it was Glucksman's wish that Kotlow and SH be "co-agents" (Kotlow Aff ¶ 88). On "information and belief," Kotlow avers that the will was modified to increase SH's share without Glucksman's knowledge, or as a result of "duress and coercion" (id. ¶ 91). In his affidavit, MH states his understanding that Glucksman's will was actually amended twice in 2017, although he does not profess to have specific knowledge about the nature of these changes (MH Aff ¶¶ 54-61).
It is not clear if this is a reference to the possible replacement of Kotlow by MH as "successor" agent as discussed supra . The 2015 POA at the center of this proceeding clearly appointed SH as the POA, and Kotlow as his successor, rather than making them co-agents.
In response, SH avers that he discussed the change of counsel with his mother and it was "her decision ... without any undue influence" from him (SH Aff ¶ 15). In her affidavit, Glucksman also states that the decision to change attorneys was hers alone, and that it is her desire that respondent be the executor of her estate (Glucksman Aff ¶¶ 14, 22, 29).
D. Glucksman's Housing
The Petition alleges that SH wrongfully sought certain changes in regard to Ms. Glucksman's residence in Avila. In particular, petitioners point to an e-mail appended to the pleading in which respondent asked Avila to facilitate the signing by Glucksman of a document which would direct that the $ 300,000 deposit she kept with Avila be returned to him and not pass to her estate upon her death (Kotlow Aff, Ex 5). Ms. Glucksman is copied on the e-mail, which states that the change is in conformity with her wishes (id. ).
The e-mail refers to an individual named Bea Hanft; from the context, this is clearly Glucksman.
Petitioners also allege that respondent sought to move his mother from the 2-bedroom apartment where she had resided for the past seven years — which they contend she can "easily afford — to a one-bedroom space "against her express desire, in a further effort to benefit him personally at the expense of Ms. Glucksman" (Pet ¶¶ 74-75; see also Kotlow Aff ¶¶ 92-94). As evidence for this, they point to a series of e-mails written by SH in September 2016, in which he inquired about availability and cost "[i]n the event my mother were to have to move to a smaller, 1-bedroom less costly apt... in the main building" (Kotlow Aff, Ex 6). After Avila provided the information, he responded in an e-mail stating that "moving her to a 1-bdrm is something I must discuss with her when we are with her" (id. ). There is no allegation in the petition or supporting documents that anything further was done in regard to this issue, or that such a move actually took place.
E. Other Allegations
The petition and other submissions before me make various additional assertions in support of petitioners' contention that SH should be removed as POA. Among other things, petitioners allege:
• Glucksman has failed to timely file her 2016 tax returns (Pet ¶¶ 99-102).
• SH "thwarted" an investigation into his treatment of Glucksman by APS by "coach[ing] her and forc[ing] her to say things" (Pet ¶¶ 91-92).
• SH threatened and verbally abused his mother's home health aide (Salitan-Thiell Aff ¶ 42).
• Respondent "screams at Ms. Glucksman when he visits," and leaves notes for her to memorize, including instructions that she disallow other family members from visiting (Pet ¶¶ 113-114; Kotlow Aff ¶¶ 95).
Discussion
I. Motion to Disqualify Counsel
Although the application to disqualify respondent's counsel Kevin Engel is made via cross motion, I will consider the conflict of interest aspect of the application first, to the extent the presence of such a conflict may impact consideration of the remaining matters before me. I find, however, that there is no conflict which would warrant disqualification.
Petitioner's second ground for disqualification — that Mr. Engel is a necessary witness — is mooted by my decision below dismissing the petition without resort to an evidentiary hearing.
Petitioners' argument is that there is a conflict between the prior representation of Glucksman by respondent's counsel, and his current representation of SH, at least according to the allegations made in the petition and supporting documents. Petitioners argue that Engel "represented Ms. Glucksman on matters being challenged as improper in this suit and, thus, substantially related to his representation of Respondent here, which is adverse to Ms. Glucksman based upon the sworn affidavits and the expert affidavit submitted by Petitioner" (Pet Mem in Supp Cross Mot at 12). They maintain that since they have shown the existence of a "prior attorney-client relationship" and that "the former and current representations are both adverse and substantially related," disqualification is irrebutable and counsel must be disqualified (id. [citing Solow v. Grace & Co. , 83 NY3d 303, 308 [1994]).
But this argument misstates the circumstances at issue in Solow , and therefore the upshot of its holding. That case — and the ethical principle which it construed — concerned an attorney who previously represented the adversarial party in the litigation (see 83 NY2d at 306 ["A lawyer may not both appear for and oppose a client on substantially related matters when the client's interests are adverse"] ). That is, the Solow rule provides that "an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client , [and] all the attorneys in that firm are likewise precluded from such representation" ( Kassis v. Teacher's Ins. & Annuity Assn , 93 NY2d 611, 616 [1999] [emphasis added]; see also Tekni—Plex, Inc. v. Meyner & Landis , 89 NY2d 123, 131 [1996] ["A party seeking disqualification based on a counsel's prior representation of that party must establish," inter alia "the existence of a prior attorney-client relationship between the moving party and opposing counsel "] [emphasis added] ).
Here petitioners seek to establish a conflict between respondent and a non-party to whom his counsel has previously provided representation (Ms. Glucksman), in the event the factual claims set forth in the petition are found to be true. Put otherwise, petitioners argue that if I credit the allegations in the petition, it would show that SH's interests are in conflict with Glucksman's, and therefore Engel would have provided representation to conflicting parties.
This expansion of the circumstances requiring disqualification is not supported by Solow , conflicts with the "general policy favoring a party's right to representation by counsel of choice," and "deprives [SH] of an attorney familiar with the particular matter" ( Tekni—Plex, Inc. , 89 NY2d at 131 ). While petitioners contend that there is an "irrebutable" presumption of disqualification (see Pet Mem of Law, Cross-Mot to Disqualify at 11), that presumption concerns shared confidences among attorneys in the same firm providing representation, and the danger such confidential information could be disclosed if one of those attorneys represented an adverse party (see generally Solow , supra ). There is no basis for the irrebutable presumption petitioners would have me draw: that I should presume their allegations as true and on that basis find a conflict between respondent and a non-party (see Pet Mem in Supp Cross Mot at 11 [this Court must "recognize that Petitioners['] allegations could be true, rendering his representation and defense of Respondent here incongruent with the best interest of Ms. Glucksman"] ). To the contrary, a party's right to choose his or her own counsel "should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion" to show that is the case (see Olmoz v. Town of Fishkill , 258 AD2d 447, 447 [2d Dept 1999] [citations omitted] ). Petitioners have not carried that burden here.
I proceed, then, to address the motion to dismiss.
II. Motion to Dismiss
Respondent seeks dismissal of the petition on the grounds that petitioners lack standing, and the petition fails to state a claim under GOL § 5-1510. For their part, petitioners seek an evidentiary hearing on their claims (Pet Mem in Opp, Mot to Dism at 3 ["this Petition should not be dismissed, but rather heard on the merits through a full hearing after the benefits of additional discovery"] ).
Such a hearing is necessary in a special proceeding "only where the papers and pleadings raise a material issue of fact" (Matter of Dutcher v. Paradise , 217 AD2d 774, 775 [3d Dept 1995] ). In short, the standard for an evidentiary hearing is that which applies to summary judgment (see Matter of Jones v. Marcy , 135 AD2d 887, 888 [3d Dept 1987] ). Thus, I must take all the facts asserted by petitioners as true, and if they fail to provide a legal basis for the petition, then it may be summarily determined (see CPLR 409 [b] [in a special proceeding "[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised"] ). These principles apply to questions of standing, as well as to the ultimate merits of the petition (see Matter of Friends World Coll. v. Nicklin , 249 AD2d 393, 394 [2d Dept 1998] ). I will address the standing issue first.
As to petitioners' assertion that they intend to seek discovery in the event they are allowed to proceed to a hearing (see supra ), for present purposes I note only that disclosure is limited in a special proceeding to instances "where it is demonstrated that there is need for such relief" (see Matter of Town of Pleasant Val. v. New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15 [3d Dept 1999] ).
A. Standing
1. Power of Attorney and Accounting
Respondent contends that petitioners lack standing to seek his removal as POA. Under GOL § 5-1510(2)(f), a special proceeding to remove a power of attorney may be commenced by "any person identified in subparagraph three of paragraph (a) of subdivision two of section 5-1505 of this title, the agent, the spouse, child or parent of the principal, the principal's successor in interest, or any third party who may be required to accept a power of attorney ( GOL § 5-1510 [3] ). Section 5-1505(2)(a)(3) lists a number of individuals, including as relevant here "a co-agent or successor agent acting under the power of attorney."
Petitioners maintain that they have standing as successors in interest to Glucksman in that they are heirs to her estate (Pet Mem in Opp, Mot to Dism at 2; Pet ¶ 22). In addition, Kotlow and Hanft indicate they may have standing as possible successor powers of attorney (Pet Mem in Opp, Mot to Dism at 2; Pet ¶¶ 17-20 & 49-51). Because I find there is sufficient evidence of standing for at least one of the petitioners on this second ground, I need not address the first argument.
Petitioners present a copy of the original POA which names Kotlow as successor and bears her notarized signature accepting the appointment (Kotlow Reply Aff, Ex A). In addition, an email from respondent dated March 1, 2017 confirms that his niece Caren (i.e. Kotlow) is his successor as POA (see Kotlow Aff ¶ 18; Kotlow Aff, Ex 8).
A second set of documents reflect the possibility that Kotlow was replaced in this role by MH. Specifically, petitioners present an email from SH to MH dated September 22, 2017, which states that while Kotlow was the successor POA, there had been "problems your sister has had with my mother" and thus Glucksman "wishes to ... make you the successor in case of my death" (MH Aff, Ex 1). According to MH, however, he was never provided a POA naming him as successor, but instead was sent a document designating him secondary executor to Glucksman's estate. Although MH made requests for a copy of the POA to both SH and Engel, and notwithstanding a subsequent email that December in which SH confirmed Glucksman's intent to go through with the appointment, MH never received a copy of the new POA (id. ¶¶ 56-76 & Ex 9).
According to MH, Engel confirmed via telephone that the only POA in his possession named Kotlow as the successor (MH Aff ¶ 75).
In short, Kotlow presents prima facie evidence of her standing via the POA itself, and to the extent there is any evidence that she has been replaced, it indicates that the role was filled by petitioner MH. Respondent has presented no evidence to rebut petitioners' contention, although he has the POA in his possession; indeed, his motion does not address the "successor POA" basis for standing. Thus, Kotlow and SH cannot be dismissed on standing grounds as to their claims under title 15, provided that the proceeding is otherwise viable. For the same reason, they cannot be dismissed on standing grounds as to their application for an accounting (see GOL § 5-1505[2][a][3][ii] [POA must make record of proceedings on demand to certain individuals, including successor agents]; GOL § 5-1510[a] [individuals listed in GOL § 5-1505[2][a][3] have standing to bring court action for accounting] ).
There is no contention that Salitan-Thiell has standing under this provision. Nevertheless, the upshot of the above finding is that I may proceed to consider the merits of the petition. There is therefore no reason to explore whether Salitan-Thiell has standing as a successor in interest to Glucksman.
2. SCPA 711
As noted, petitioners also ask that the Court "revoke or preclude Respondent from acting as executor of Ms. Glucksman's estate." The basis for this application is SCPA § 711, which provides in relevant part that in certain specified cases "a co-fiduciary, creditor, person interested, any person on behalf of an infant or any surety on a bond of a fiduciary may present to the court having jurisdiction a petition praying for a decree suspending, modifying or revoking those letters." By "letters," the statute is referring to letters issued by a court which certain fiduciaries, including executors and administrators of an estate, must obtain before they can act (see Practice Commentaries, SCPA § 701 ).
Respondent argues that this applies only to matters of probate, and thus petitioners cannot bring this action since "Ms. Glucksman is alive and well" (Resp Aff Supp, Mot to Dism ¶¶ 14-18). For their part, petitioners assert that in the event respondent is removed as POA, the Court should "employ its broad equitable powers and preclude him from acting as executor of Ms. Glucksman's estate," as "how could one be condoned but not the other?" (Pet Mem in Opp, Mot to Dism at 16).
The answer to this question is that the New York State Legislature limited the power to supervise and remove an executor to a proceeding on letters of administration and letters testamentary (see SCPA § 103 [34] & art 7). While such letters can be issued by Supreme Court, this occurs only when a will is brought to probate, a will contest is completed, or in certain other circumstances not relevant here (see SCPA § 1414 ). I am pointed to no authority which would allow me to reach into an unprobated will, and change the designated executor while the will's author is still alive. Such a proceeding would clearly be unripe, and appears to be outside the Court's jurisdiction as set forth in the SCPA. The Court's equitable powers cannot provide a basis to do an end run around a clear statutory procedure.
In any case, since I have not found that respondent should be removed as POA in this proceeding, the premise on which petitioners' argument is built is absent, and thus cannot serve as basis for the Court to address his role as executor.
In sum, I find petitioners lack standing at the present time to challenge SH's role as future executor of Glucksman's will. I turn, then, to the merits of petitioners' application to remove respondent as POA.
B. The Merits of the Petition
Under GOL § 5-1510(2)(f), a special proceeding may be commenced to remove a power of attorney on the ground that he or she has "violated, or is unfit, unable, or unwilling to perform, the fiduciary duties under the power of attorney."
In addition to challenging petitioners' standing, respondent argues that the petition fails to state a claim under this provision, because it is "inarguable" that "Ms. Glucksman is lucid and in control of her own medical and financial decisions"; she has selected SH as the POA; and SH "has not used his authority as power of attorney on behalf of the principal in any manner" (Resp Mem in Supp, Mot to Dism at 4; see also Resp Aff in Supp, Mot to Dism ¶¶ 12-13). As noted supra , both SH and Glucksman affirm this last point under oath.
While petitioners take issue with the specifics of some of respondent's assertions, they nowhere rebut his contention that Glucksman is mentally competent and was so when she appointed SH as POA. Nor do any of their allegations concern the use of the POA. Further, they present no cognizable grounds for questioning the veracity of Glucksman's sworn statement that she wishes SH to continue as the POA. Instead, they attribute that sentiment to manipulative conduct and emotional pressure on his part. The question before the Court is: where a competent principal states her desire to continue representation by a POA, who is not accused of misusing the power vested in him by that document, may the Court summarily dismiss the petition without an evidentiary hearing? In considering this question, I look first to the history and purpose of Title 15.
Petitioner's reply brief states: "Ms. Glucksman may be in fair health and sound mind for a 95-year-old, but that does not equate to legal competence or understanding" (Pet Mem in Opp, Mot to Dism at 6). To the extent this can be construed as a challenge to her competence, it is entirely conclusory and petitioners have presented no evidence that she lacked the legal competence to sign a durable POA appointing SH as her agent, or to submit the affidavit she presents in this proceeding endorsing his continuation in that role.
Title 15 arose out of a report of the Law Revision Commission ("LRC" or "Commission"), which drafted the statutory language now at issue (see Letter of LRC to Counsel for the Governor, Dec. 22, 2008 ). The LRC report outlined the need for greater supervision of POAs, including via a special court proceeding like the one now before me. The report delineated two primary concerns underlying the creation of such supervisory mechanisms. First, the Commission was concerned that an incapacitated principal lacks the means to supervise an agent and prevent exploitation (LRC Report at 13 [need for supervision of POA when "the Principal's incapacity leaves her unable to monitor the Agent's actions"]; id. at 15 [noting evidence of abuse when POA "was placed in the wrong hands, especially when the Principal's incapacity left him or her powerless to control the Agent"] ). Second, the report noted numerous instances of "financial exploitation through powers of attorney," which additional oversight could prevent (id. at 19).
The statute's legislative history is contained in the bill jacket to Ch 644, L 2008, available at http://digitalcollections.archives.nysed.gov/index.php/Detail/Object/Show/object_id/23483.
On the other hand, the LRC recognized that an important value advanced by a POA was to provide an alternative to Article 81 guardianship that does not require resort to the expense of court proceedings entailed by that procedure, and that may be established by mentally competent individuals (see id. at 5 ["the power of attorney is widely used ... for avoiding the expense of guardianship in the event of incapacity"]; id. at 13 [purpose of a durable power of attorney is to "allow an Agent to act for a Principal precisely at a time when the Principal needs assistance, to permit the Principal to plan for possible incapacity, and to eliminate the need for expensive alternatives such as a trust or guardianship"]; id. at 22 ["the Commission has recognized that the power of attorney is an effective tool ... for avoiding the expense of guardianship"]; Mem of Office for the Aging, Ch 644, L 2008 ["The provisions in this legislation ... allow a Principal to avoid the expense and stigma of guardianship"] ).
The import of such considerations for the present proceeding is this: the conduct of a hearing under section 5-1510 that does not concern the misuse of a POA, but whose purpose is rather to inquire into such matters as (1) the motive and reasoning behind the appointment, and (2) whether such appointment was the result of "manipulation" or a desire to maintain a familial relationship, would undermine the existence of a POA as an alternative an individual can create autonomously without the need to resort to the courts. Moreover, to the extent such a proceeding results in the removal of the principal's personal selection of POA, it would constitute "a judicial nullification of a [principal's] choice," which should only be permitted when the statutory grounds for such "have been clearly established" ( Matter of Duke , 87 NY2d 465, 473 [1996] ).
Matter of Duke concerned the removal of an executor. The relevance of such proceedings to the matter at hand is discussed below.
That said, the statute clearly lists as a ground for removal the agent's lack of fitness, as well as the violation of the fiduciary duties vested in him by the POA. Conceivably, a significant showing of dishonesty or fraudulent conduct would meet that test, even if it did not involve the POA itself. Further, evidence that calls into question whether the principal's selection of an agent was the result of such improper factors as deception or threats of harm could warrant removal in a particular case. But the Court should be very wary of overstepping its bounds on these matters, so as not to transform a section 5-1510 proceeding into one that overrides a competent individual's choice as to how best to manage his or her affairs.
Given the paucity of legal authority in the power of attorney context, I find relevant guidance in caselaw addressing whether an executor may be removed due to dishonesty in financial matters, under a statute that similarly allows for removal of a fiduciary on the ground that he or she is "unfit" (see SCPA § 711[8] ). Those decisions recognize that the testator's "selection of a fiduciary must be given great deference" (see Matter of Rimland , 205 AD2d 693, 694 [2d Dept 1994] ; Matter of Marsh , 179 AD2d 578, 580 [1st Dept 1992] ). Thus, while dishonesty may be grounds for removal, the party that seeks removal has the burden of proving the dishonest conduct (see Matter of Krom , 86 AD2d 689, 690 [3d Dept 1982], lv dismissed 56 NY2d 807 [1982] ). Moreover, the fact that the fiduciary was not truthful about matters unconnected to finances does not show he is unqualified to serve (see Matter of Estate of Horton , 255 AD2d 642, 644 [3d Dept 1998] ["[t]he dishonesty that renders a person incompetent to execute the duties of a fiduciary is dishonesty in money matters, giving rise to a reasonable apprehension that funds of the estate would not be safe in his hands"] [citations omitted]; Matter of Cahn , 161 AD2d 1065, 1066 [3d Dept 1990], lv dismissed 77 NY2d 939 [1991] ["[t]hat petitioner may have lied to decedent about personal matters during the parties' ... association does not suggest that she is unqualified to serve as executrix"] ). At least comparable deference should be given here, where SH was not only appointed POA, but the competent principal is still alive and has filed papers stating her desire that he remain in that capacity.
The statute also lists specific types of unfitness, such as "dishonesty."
A durable power of attorney continues in effect notwithstanding the grantor's incapacity (see GOL § 5-1501A ). The point here is not that a principal's intent in appointing a POA ceases to be relevant upon her incapacity; rather, the deference granted in any case to effectuating the principal's intention is particularly warranted where the principal is competent, and re-affirms that intent in a sworn court filing.
With this background in mind, I consider whether the allegations set forth in the petition, taken as true, give rise to a sufficient showing of unfitness to warrant an evidentiary hearing, in light of the significant countervailing factors cited above.
1. Glucksman's Affidavit and the Alleged Forgeries
Petitioners allege that respondent should be removed notwithstanding Glucksman's affidavit, because her decision to appoint and continue him as POA was made due to respondent's manipulative and coercive conduct. They also rely on their contention that SH engaged in prior forgeries to call the accuracy and voluntariness of Glucksman's affidavit into question, and maintain that such conduct by SH itself demonstrates his unfitness to be the POA.
In regard to the first argument, petitioners assert in particular that Glucksman stated that she would do whatever respondent asked out of fear of losing her relationship with him (Pet Mem in Opp, Mot to Dism at 10). But nothing in that statement rebuts the voluntariness of Ms. Glucksman's choice to appoint SH as POA. As noted, it cannot be the role of this Court under section 5-1510 to examine the principal's inner motives for appointing an agent and determine whether they are worthy, except to the extent that improper means such as threats or fraud were used to secure or maintain the appointment (cf. Matter of Flood , 236 NY 408, 410 [1923] [fact that "ties of kindred and long acquaintanceship" led testator to choose inexperienced fiduciary "will not justify a judicial veto on such choice"] ). For that reason, petitioner's assertion that a hearing is necessary so as to determine whether the averments made by Glucksman in her affidavit can be "corroborated" by staff at the facility where she resides, caretakers, and friends (see Pet Mem in Opp, Mot to Dism at 10-11) misconceives the limited grounds on which the Court may intervene in an individual's choice of agent. Such a far-ranging inquiry into the motivations and circumstances under which a principal has selected a POA is well beyond the supervisory role granted the Court by section 5-1510.
Petitioners also seek to counter Glucksman's statement that she handles her own financial affairs, pointing out that she has now failed to file her taxes on time, and that Kotlow "helped [her] with her banking and financial advice needs — often communicating with [her] accountant and financial advisor" (id. at 11). This does not rebut the basic proposition that she does not depend on SH's use of the power of attorney to carry out the regular management of her finances, nor does it indicate that she is not competent to select her own POA or demonstrate why SH should be removed. A POA has a duty is to follow a principal's instructions or, in the absence of instructions, to act in her best interests and avoid conflicts ( GOL § 5-1505 [2][1] ). I see no basis to infer from the mere fact of Glucksman's failure to file a timely return that this was the result of respondent violating these obligations.
Petitioners also point to the findings submitted in their expert report that the printed text and signatures on certain documents were not made by Glucksman. I note initially that these findings do not call into question the authenticity of the affidavit itself. The affidavit is notarized, giving rise to a presumption that the signature thereon is genuine (see Seaboard Sur. Co. v. Earthline Corp. , 262 AD2d 253, 253 [1st Dept 1999] ). Petitioners have not presented any facts to rebut that presumption, upon which I could conclude that the signature is not valid or the affidavit coerced. Rather, they maintain that Glucksman's denial of the expert's finding regarding her signature shows that SH "forced her to aver that she recognized the signatures" on the documents at issue (Pet Mem in Opp, Mot to Dism at 12). In short, they ask that I infer that the affiant's testimony was improperly obtained merely because it is conflict with petitioners' evidence. I see no basis to deduce coercion from the fact that petitioners' and Glucksman's factual averments are at odds.
Further, I do not find that petitioners' assertions that certain signatures and writing were not made by Glucksman — even if accurate — provide a basis for removal of the POA under section 5-1510. As POA, SH could have signed these forms on his mother's behalf as her POA in any case, so the motive for forgery is not clear. The St. Peters' document merely authorized respondent to get health care records of his principal, and the record reveals no nefarious purpose in SH obtaining such access. While petitioners contend that this document was used to shut Kotlow and Salitan-Thiell out from receiving health care information, the form related only to SH's right to obtain information. It did not bar Ms. Glucksman from signing a similar form for them — as evidenced by the fact that she ultimately did so.
The power of attorney does not allow SH to exercise control over Glucksman's health care decisions, which is a matter within the authority of her appointed health care proxy (see Kotlow Reply Aff, Ex A at 2). The POA does grant him authority with respect to health care records, however (id. at ¶ 3.k). Moreover, it appears that respondent is her health care proxy as well (see Kotlow Aff, Ex 4).
As to the assertion that SH sent out emails from Ms. Glucksman's account to necessitate a hearing on his fitness to serve as POA, petitioners' own submissions state that Glucksman was aware of this practice, and the one e-mail presented as evidence on this called for a meeting at her own apartment to discuss the message. Indeed, it is that very e-mail that they rely upon for the contention that she did not intend to alter her will (see Kotlow Aff ¶¶ 83 [alleging January 20, 2017 e-mail was written by SH], 89 [citing that e-mail as proof of Glucksman's intent that will not be changed] ). There is simply no evidence in the record before me that the e-mail was sent against Glucksman's will or for some fraudulent purpose.
Finally, the Baer Report asserts that the signature on Glucksman's letter sent to her then-attorney Tom Kenney, Jr., on January 16, 2017, terminating Mr. Kenney's services on the ground that there is "some personal relationship" between him and Ms. Glucksman's grandchildren, was "probably" not hers (Baier Report at 2). To the extent the Report presents a question of fact as to whether Glucksman actually signed the document, I find this assertion insufficient to warrant a hearing, or to place in doubt the veracity of the Glucksman affidavit. In that affidavit, Glucksman specifically addresses this letter, states that she recognizes the signature as hers, and that she supported the removal of counsel. Further, petitioners' own submissions indicate that she was capable of addressing the hiring and firing of counsel if she disagreed with the selection; indeed, she terminated Kenney's first replacement (Pet ¶ 38). Moreover, Glucksman was clearly made aware of her counsel's termination in the more than one year that elapsed between that occurrence and the filing of this petition, and there is no evidence that it has led her to change her selection of POA.
2. Alleged Violations of Fiduciary Duty
A POA is given "with the intent that the attorney-in-fact will utilize that power for the benefit of the principal" ( Mantella v. Mantella , 268 AD2d 852, 852 [3d Dept 2000] [citation omitted] ). Thus, the POA is under a fiduciary duty to act towards the principal with "utmost good faith," in accordance with the principles of "morality, fidelity, loyalty and fair dealing" (id. ). In the context of an executor, however, the Court of Appeals has found that while removal of an agent is appropriate in the case of a "showing of serious misconduct that endangers the safety of the estate, it is not every breach of fiduciary duty that will warrant removal ...." ( Matter of Duke, 87 NY2d at 473 ).
Petitioners allege that SH has engaged in various forms of conduct that violate this duty, and on which basis he should be removed.
Petitioners point to SH's role in terminating her counsel, and hiring attorney Engel, with whom they allege he had a prior relationship, as a violation of his duty to Glucksman. But the only improper purpose they allege for these actions was respondent's desire to have Glucksman alter the distribution of her estate in a manner that benefitted SH at the grandchildren's expense. This does not, on its face, violate SH's fiduciary duty to the principal, as there is no claim she was personally harmed by such a change, which would have required her assent. Petitioners contend that any amendment to the will contravened Glucksman's longstanding view that she would not change the allocation of her estate (see Pet Mem in Opp, Mot to Dism at 7 [referring to Glucksman's "open and notorious" wish not to change the equal distribution of her estate between petitioners and respondent] ). But facilitating a change in the principal's previously expressed intention does not, without more, show that the agent violated his fiduciary duty.
The supporting affidavits make clear that petitioners do not know the precise nature of any such changes (see supra p. 8).
I do not, of course, draw any conclusions regarding the propriety of any such changes, or the merits of any future challenge to them by petitioners in a different context. I find only that the allegations do not set forth a valid claim that SH violated his fidicuary duty to Glucksman.
The petition also asserts that the changes of attorney are by themselves "a signal of impropriety "(Pet ¶ 63). But the cases petitioners cite for this proposition involve an agent using a power of attorney to change counsel so as to facilitate the transfer of the principal's assets, without involvement of the principal (see id. [citing Matter of Ferrara , 7 NY3d 244 [2006] and People v. Marshall , 106 AD3d 1, 6-7 [1st Dept 2013], lv denied 21 NY3d 1007 [2013] ). Here, there is no allegation that SH used the POA to hire new attorneys without Glucksman's awareness. Indeed, as noted, Glucksman ultimately fired one of those attorneys herself.
Petitioners further argue that SH has abused his power of attorney by improperly "gifting himself" Glucksman's jewelry and the Avila security deposit, notwithstanding the fact that the POA did not contain the requisite gift rider (see Pet Mem in Opp, Mot to Dism at 15). Indeed, an agent may not, consistent with his fiduciary duty, make a gift to him or herself, without a showing of the clearest intent on the part of the principal that the gift be made ( Matter of Naumoff , 301 AD2d 802, 803 [3d Dept 2003], lv dismissed 100 NY2d 534 [2003] ). But the present record does not support an inference that SH acted in violation of the limitations of the POA through these actions, since petitioners adduce no evidence that these steps were taken by means of the POA. Moreover, the record demonstrates that Glucksman herself sought the removal of her jewelry from the safe deposit box, and the only evidence that SH converted it to his possession is an indication that Glucksman was on one occasion unaware of where it had been placed until reassured by SH. That is just not a sufficient basis from which I may infer that SH committed theft.
As to the Avila deposit, SH directed that it be given him (or his wife) upon Glucksman's death , stated that this was her intent as well, and copied her on that e-mail. In short, while an agent's theft of a principal's property might well call into question that individual's fitness to carry out his fiduciary role, the facts as alleged do not suffice to give rise to an inference that such occurred in this case.
None of the other allegations, taken as true, demonstrate unfitness or violation of respondent's duty so as to necessitate a hearing. I therefore decline to hold a hearing on petitioners' application to remove respondent as POA, and instead deny that application.
III. Accounting
Petitioners seek an order compelling respondent "to provide an accounting and a record of all receipts, disbursements and transactions entered into by the Respondent and to deliver any property belonging to Ms. Glucksman to her" (Pet at 19).
The provision governing such a demand is as follows:
"If the agent has failed to make available a copy of the power of attorney and/or a record of all receipts, disbursements, and transactions entered into by the agent on behalf of a principal to a person who may request such record pursuant to subparagraph three of paragraph (a) of subdivision two of section 5-1505 of this title, that person may commence a special proceeding to compel the agent to produce a copy of the power of attorney and such record" (GOL § 5-151[1]).
Petitioners do not allege that they requested such an accounting prior to bringing this action. Moreover, respondent attests that there is nothing to account for, as he has never used the POA, and petitioners present no evidence to rebut this showing (SH Aff ¶ 12; Aff in Supp, Mot to Dism ¶¶ 12-13). While they argue that he has "gifted" to himself Glucksman's jewelry and security deposit, for reasons set forth above they have not shown that any of the actions on which these claims are based were accomplished using SH's power as Glucksman's agent.
There is, however, one wrinkle to the above: although the record indicates that repeated requests were made by MH for a copy of the POA, none was provided him, nor has one been presented as part of this proceeding. While the demand for a copy of the POA was not specifically referenced in the relief petitioners sought, I find it to be encompassed within the demand for an accounting, and in any event is warranted under the catchall demand for additional relief as the Court "deems just, proper and equitable" (Pet at 19). Moreover, the record reflects that respondent has at various times indicated that Kotlow, MH or someone else would be the successor, although the decision is Glucksman's to make. The possible successor agents have the right to know if they bear this responsibility. I therefore grant this application solely to direct respondent to provide petitioners Kotlow and MH, either of whom may be the successor agent under this record, with a copy of the POA currently in effect.
Finally, as to the last part of this demand — that all property "belonging to Ms. Glucksman" be returned to her — I can find no authority for a Court to issue such an order in a special proceeding of this kind (see generally GOL § 5-1510 ). I decline, therefore, to direct such relief.
IV. Investigation by Adult Protective Services
Petitioners seek a direction from the Court to non-party APS that it investigate respondent under Social Services Law § 473(6)(c) and (g), which provide the definitions for emotional abuse, and financial abuse and exploitation. Respondent argues that this relief is barred by the doctrines of collateral estoppel and res judicata, since petitioners concede that APS carried out such an investigation in 2017 and terminated it without making any finding of abuse (see MH Aff ¶ 47).
APS is not a specific entity; rather it is a service provided by county departments of social services under the oversight of the Bureau of APS at the New York State Office of Children and Family Services (see https://ocfs.ny.gov/main/psa/). For present purposes, the only salient fact is that this aspect of the petition seeks action by a governmental entity (presumably via the Albany County Department of Social Services) that is not a party to the lawsuit.
The initial investigation is described in MH's affidavit as follows: On February 8, 2017, he requested that APS conduct an investigation into his grandmother's safety (id. ¶ 43). He says that APS had "genuine concerns" based on the report and an initial visit by a caseworker, who decided to conduct further visits after she was the subject of "verbal assaults" by SH (id. ¶ 46). But SH then "coached" Ms. Glucksman into asking APS to stop the investigation, which it did (id. ¶ 47; see also Kotlow Aff ¶ 106). Although APS indicated it would "consider additional measures" if her private caregiver left, it "could not continue with their investigation given [Glucksman's] requests, although they encouraged MH to submit another referral "if necessary" (MH Aff ¶¶ 49-50).
Kotlow also asserts that SH "demanded" that Avila not allow APS to speak with Glucksman (Kotlow Aff ¶ 106).
I see no basis for this Court's jurisdiction over this demand. APS is not a party to this proceeding, nor has any cause of action been pled under Article 78 of the CPLR, the statute that governs a mandamus proceeding to compel action by a State agency.
For his part, respondent essentially concedes the Court's jurisdiction (see Resp Mem in Supp, Mot to Dism at 6 ["... Social Services Law Section 473 permits a court to order an investigation by protective services"] ). Section 473, however, includes no provision for Court proceedings, although section 473-C provides that a Court action may be brought by APS to gain access to persons believed to be in need of services. In any event, a court may dismiss an action which it independently determines to be outside its jurisdiction, regardless of whether the parties have raised the issue (see Matter of Watervliet Hous. Auth. v. Bell , 262 AD2d 810, 811 [3d Dept 1999] ["a court's lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may ... [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action"][citations and internal quotation marks omitted] ).
Petitioners rely on Ryerson Towers v. Jackson (173 Misc 2d 914 [NY Civ Ct 1997] ), in which the Court directed that the Department of Social Services be joined in an eviction proceeding so that complete relief could be granted, including by the provision of eviction prevention services, and it was "requested" to perform an evaluation of the tenant ( id. at 916-917 ). The Department appeared on the motion for joinder ( id. at 915 ).
In this case, petitioners do not seek the joinder of APS; they seek a Court order directing an investigation. In short, they ask that I issue a directive to a non-party, and a governmental entity to boot, that it expend its resources in a particular manner. I see no law that grants me jurisdiction to issue such an order, and nothing cited by petitioners indicates that I have such authority.
Finally, to the extent I do have authority to order this relief, I decline to exercise it here. Petitioners concede that there was an investigation of Glucksman's treatment last year, after many of the events described in the petition, which was closed without any finding of wrongdoing. While they attribute this to respondent's "coaching," they provide no reason as to why the outcome would be any different if another investigation was conducted. Indeed, Glucksman states in her affidavit that she has "no need" for nor wants any further visits from APS (Glucksman Aff ¶ 30).
In light of the foregoing, I see no basis to grant this relief.
Since there was no prior court decision in this regard, the doctrines of collateral estoppel and res judicata are not precisely applicable here. But the basis for respondent's assertion of these doctrines — that APS has already looked into the matter and closed its investigation — is ultimately persuasive, to the extent I have any jurisdiction to consider the issue.
* * *
On the basis of the reasons set forth above, this action must be dismissed, except as to an order directing production of the POA. None of the foregoing, however, is intended to diminish the importance of ensuring that Ms. Glucksman receives both the proper treatment and autonomy to which she is entitled, or to vitiate the fact that respondent acts as her fiduciary under the POA, with all its attendant obligations and responsibilities.
But ultimately, she has the choice as to whom to appoint as her POA, she has exercised that choice, and she continues to stand by it in a sworn affidavit. While section 5-1510 provides for court oversight to ensure that this power does not become a tool to advantage the agent to the principal's detriment, such oversight should not subject a competent individual's choice of POA to court scrutiny regarding its wisdom. Nor can it be a vehicle for reviewing every negative aspect of the relationship between agent and principal regardless of whether it touches on the use of the power at issue. Scrutiny of this nature would alter the balance intended by the Legislature between on the one hand preventing abuse, and on the other ensuring that an individual is able to carry out financial transactions through someone of his or her choosing without resort to the expense and complexity occasioned by a court proceeding.
While some of the evidence submitted on behalf of this application, taken as true and construed in the light most favorable to petitioners, raises concerns about respondent's conduct, none of it presents the kind of showing which would be necessary to revoke a POA under these circumstances. Indeed, if the relief sought by petitioners were granted, one of two things could occur: First, the Court could appoint an agent against Ms. Glucksman's expressed will, who would then be authorized to carry out transactions on her behalf without her approval, essentially serving as guardian without a finding of incompetency. Alternatively, she could have no POA. In that instance, SH could act precisely as he has — using his influence to bring about the actions that petitioners oppose without resort to an agency relationship. Put simply, to the extent SH has been able to get his mother to take steps which petitioners believe to be wrong, that problem is not going to be solved by revoking his POA, since the POA has never been the instrument for these actions in the first place.
For all of these reasons, respondent's motion to dismiss the petition is granted in its entirety, except that respondent is directed to turn over to petitioners Kotlow and Hanft a copy of the POA in effect as of the date of this Decision and Order, within twenty days of counsel's receipt thereof. Petitioners' motion to disqualify opposing counsel is denied in part as set forth above, and otherwise denied as moot.
This Decision and Order is being transmitted to the County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from any applicable provisions of that Rule.
Papers Considered:
1. NYSCEF documents 1 through 37.