IN RE: the Application of Nancy NUNZIATA (2021)

The following papers have been considered on this motion:

Motion w/exhibits, supporting affirmation 1-2

Answering Affirmations 3-4

Reply 5

The motion by the cross-petitioner, made during the ongoing trial of this special proceeding, for the issuance of so-ordered subpoenas compelling (a) the testimony of Susan Wheeler, Director of Adult Protective Services for petitioner County of Nassau, and (b) the production of documents concerning inter alia, the procedures, policies and guidelines followed by Adult Protective Services, is denied in its entirety.

This proceeding, commenced by the Commissioner of the Nassau County Department of Social Services pursuant to Article 81 of the Mental Hygiene Law, seeks a judgment appointing an independent guardian for the personal needs and property management of the alleged incapacitated person, Nancy K. (“AIP”). The petition also seeks to set aside and void the advances directions executed on October 8, 2019, and to void the marriage entered into on November 8, 2020, between the AIP and the cross-petitioner, William McEnaney.

The cross-petition seeks to dismiss the petition and permit the cross-petitioner to care for the AIP. Cross-petitioner alternatively seeks, if the court determines that an independent person should be appointed the guardian of the person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed a permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP, with the power to handle her property management affairs and determine her medical and personal care.

The cross-petitioner, through his attorney, conceded during the hearing of this proceeding that Nancy K. is presently incapacitated and in need of a guardian. This court, in an order dated, April 15, 2021 (Knobel, J.) found that the health care proxy is void. The main issues still to be determined by this Court are whether the Nancy K. had capacity when the power of attorney and living will were executed, whether Nancy K. had capacity when she and the cross-petitioner were married by the City Manager of Long Beach on November 20, 2020, and whether the cross-petitioner or a family member or an independent fiduciary qualified to be a guardian should be the guardian, or a guardian, for the personal needs and property management of Nancy K.

Cross-petitioner's counsel argues that the documents and testimony sought from the Director of Adult Protective Services (“APS”) is material and relevant to the issues in this guardianship proceeding on the grounds that APS failed to conduct a proper investigation, violated its own policies, procedures and guidelines in making numerous unfounded allegations against the cross-petitioner, and that the only reason the petition at bar was filed was in retaliation for a complaint of harassment filed against APS by cross-petitioner.

In opposition to the motion, counsel for the AIP and petitioner's attorney argue that the cross-petitioner is engaging in the proverbial fishing expedition and request that the Court not sign the subpoenas.

“An application to quash a subpoena should be granted ‘[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ ․ or where the information sought is ‘utterly irrelevant to any proper inquiry’ ” (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988], citing Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931] and Matter of La Belle Creole Intl., S.A. v Attorney-General of State of NY, 10 NY2d 192, 196 [1961], quoting Matter of Dairymen's League Coop. Assn., Inc. v Murtagh, 274 App Div 591, 595 [1948], affd 299 NY 634 [1949]). It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances (see Matter of Dairymen's League Coop. Assn., 274 App Div at 595-596; see also Ledonne v Orsid Realty Corp., 83 AD3d 598, 599 [1st Dept 2011]).”

Kapon v. Koch, 23 NY3d 32, 38–39, 11 N.E.3d 709 (2014)

Here, the cross-petitioner has failed to demonstrate inter alia that any testimony and possible evidence pertaining to the procedures and guidelines utilized by APS, in making their determination to commence the proceeding at bar, are material, relevant and necessary to the remaining issues in this guardianship proceeding as outlined above, or in defense against the petition, or in support of his cross-petition. The Court notes that the cross-petition is devoid of allegations of retaliation toward the cross-petitioner by the Department of Social Services and Adult Protective Services.

Accordingly, it is

ORDERED that the branches of cross-petitioner's motion for (1) a “so-ordered” subpoena duces tecum for the production of inter alia the procedures, policies and guidelines followed by Adult Protective Services, and (2) a “so-ordered” subpoena to compel the testimony of Susan Wheeler, Director of Adult Protective Services, County of Nassau, is denied in its entirety.

The foregoing constitutes the decision and order of this Court.

Gary F. Knobel, J.