ADAM BROOK v. ESQ IRA SALZMAN ESQ DIANA ROSENTHAL ESQ FELICE WECHSLER ESQ KENNETH BARACOS ESQ IAN SHAINBROWN ESQ THE SHAINBROWN FIRM LLC KARL HUTH ESQ HUTH REYNOLDS LLP HOWARD MUSER ALLEGIENT HOME CARE LLC ANN REEN MARY MANNING WALSH NURSING HOME COMPANY INC ALLEN LOGERQUIST FLORENCE PUA ERIC NOWAKOWSKI TOWANA MOE JOHN MITCHELL NATIVIDAD ARTHUR AKPEROV DORIS BERMUDEZ NAVJOT SEPLA MARIE SWEET MINGOA MONITOR ME JASON KUBERT ANTHONY BACCHI JOHN DOES 10 (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 109, 110, 111, 112, 113, 114, 115, 116, 154, 165, 170, 180, 189, 251 were read on this motion to/for DISMISSAL.

In this action to recover damages for violation of the New York Constitution, wrongful death, the conscious pain and suffering of the decedent, Judith Brook, breach of fiduciary duty, medical and legal malpractice, fraudulent billing, unjust enrichment, violation of Judiciary Law § 487, fraud on the court, and negligent infliction of emotional distress, the defendant Joseph Ruotolo, Esq., moves pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of capacity to sue (CPLR 3211[a][3]), as time-barred (CPLR 3211[a][5]), as barred by the absolute litigation privilege, as barred by the doctrines of res judicata (id.), collateral estoppel (id.), on the ground that a prior action is pending against him for the same relief (CPLR 3211[a][4]), and for failure to state a cause of action, including failure to state a cause of action based on quasi-judicial immunity (CPLR 3211[a][7]). Ruotolo also moves pursuant to CPLR 3024(b) to strike allegedly scandalous and prejudicial matter from the pleadings, and pursuant to 22 NYCRR 130-1.1 for the imposition of sanctions, costs, and attorneys' fees against the plaintiffs and Daniel Isaacs, Esq., who is counsel for the plaintiff Estate of Judith Brook (the Estate). The plaintiffs oppose the motion. The motion is granted to the extent that the complaint is dismissed insofar as asserted against Ruotolo on the ground that all of the causes of action asserted against him are barred by quasi-judicial immunity, the causes of action asserted by the plaintiff Adam Brook, M.D., Ph.D., in his individual capacity are also dismissed for his lack of capacity to assert them, the eleventh cause of action insofar as asserted against him is also barred by the applicable statute of limitations, the fourth, seventh, and eighth causes of action insofar as asserted against him are also barred by the doctrine of collateral estoppel, and claims asserted against him that are premised upon statements that he made in the course of an underlying guardianship proceeding are also barred by the absolute litigation privilege. The motion is otherwise denied.

The facts of this dispute were set forth in detail in this court's May 11, 2026, order determining Motion Sequence 001. As relevant here, the claims against Ruotolo are limited to alleged violations of the New York Constitution (first cause of action), wrongful death (second cause of action), a survival claim for the decedent's conscious pain and suffering (third cause of action), breach of fiduciary duty (fourth cause of action), fraudulent billing (seventh cause of action), unjust enrichment (eighth caused of action), violation of Judiciary Law § 487 (ninth cause of action), fraud on the court (tenth cause of action), and negligent infliction of emotional distress (eleventh cause of action).¹

The decedent died on March 15, 2020. Ruotolo's involvement arises from his service as the decedent's court-appointed temporary guardian during 2019 and 2020. In an order dated May 28, 2019, entered in a proceeding Mental Hygiene Law article 81 commenced by the decedent's brother, Howard Muser, for the appointment of a guardian for the decedent, the Supreme Court, New York County (O'Neill Levy, J.), appointed Ruotolo as the temporary guardian of the decedent, with limited powers, which were later expanded by orders dated May 30, 2019 and August 26, 2019, respectively. In an order dated January 3, 2020, which was entered after an evidentiary hearing, the guardianship court found that the decedent was incapacitated, vacated the powers of attorney and health-care proxies that the decedent had given to the plaintiff Brook, appointed Ruotolo as the temporary guardian of her person and property, and empowered Ruotolo, among other things, to consent to both routine and major medical procedures on her behalf, and to pay all bills reasonably necessary to maintain her at home or in an appropriate facility. His powers were further expanded on February 14, 2020, and were in effect as of the date of the decedent's death on March 15, 2020.

In a decision and order dated August 27, 2023, which was entered after a contested hearing at which Brook cross-examined Ruotolo, the guardianship court judicially settled Ruotolo's final account, and fixed his compensation under Mental Hygiene Law § 81.28.

The plaintiffs previously pursued related claims against Ruotolo in federal court. The United States District Court for the Southern District of New York (Ramos, U.S.D.J.) dismissed the complaint in the relevant consolidated federal action on August 21, 2023, pursuant to F.R.C.P. rule 12(b)(1), holding that the plaintiffs failed to state a claim for relief, since no defendant was a state actor, the plaintiffs had not adequately pleaded a conspiracy by any state actor, and that, absent original federal jurisdiction, the court could not exercise supplemental jurisdiction over the state-law claims, which it did not reach on the merits. In a decision and order dated August 23, 2024, the Second Circuit affirmed the judgment of dismissal on the alternative ground that the federal causes of action were insufficiently pleaded (see Brook v Ruotolo, 22-cv-6173[ER], 23-cv-1319 [ER], 2023 US Dist LEXIS 147907, 2023 WL 5352773 [SD NY, Aug. 21, 2023], affd other grounds Nos. 23-1339[L], 23-7446 [Con], 2024 US App LEXIS, 2024 WL 3912831 [2d Cir, Aug. 23, 2024]).

In his motion, Ruotolo argued that Brook lacked capacity to recover for wrongful death and on the survival claim, that all of the claims asserted against him were time-barred and barred by the absolute litigation privilege, res judicata, collateral estoppel, and/or a prior action pending, and by quasi-judicial immunity. He asserted that, in any event, the complaint failed to state a cause of action. He also moved to strike the allegations of his asserted police disciplinary history and for the imposition of sanctions, costs, and fees.

In opposition, the Estate, by Isaacs, and Brook, appearing pro se, incorporated by reference each other's contentions, and argued that any statute of limitations dismissal could, at most, be without prejudice given the COVID-19 toll and the strictures of CPLR 205(a), and that any litigation privilege claimed by Ruotolo applied only to the latter's statements, but not to his conduct as guardian. They further contended that the dismissal of the federal action on the ground that there was no federal jurisdiction cannot support Ruotolo's claim that res judicata barred litigation of supplemental state-law claims that they had asserted in the federal action, and that the guardianship proceeding afforded them no full and fair opportunity to litigate their state-law claims so as to support a collateral estoppel defense. In addition, they argued that a CPLR article 81 guardian enjoys no quasi-judicial immunity, which, in any event, does not immunize conduct by the guardian that the appointing court never authorized. Furthermore, they asserted that each of their claims against Ruotolo stated a cause of action.

In reply, Ruotolo argued for the first time that the plaintiffs failed to satisfy CPLR 205(a) because they never appealed the federal court's dismissal of the state-law claims, so that the dismissal became final upon entry of the District Court judgment, and because service upon him—effected by affix-and-mail on March 21, 2024—was not made within six months of that termination. He further contended that the cause of action asserting negligent infliction of emotional distress was never interposed in the federal action, and, thus, could not be saved pursuant to CPLR 205(a).

Only the wrongful death and personal injury survival causes of action, to the extent asserted by Brook individually, fail for lack of capacity because Brook, as the decedent's executor, would otherwise be able to pursue them on behalf of the estate. A wrongful-death claim may be maintained only by the decedent's personal representative on behalf of the distributees of the state (see EPTL 5-4.1[1]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d 929, 932 [2d Dept 2016]), and the survival claim for the decedent's conscious pain and suffering likewise must be prosecuted by the personal representative, not by a distributee individually (see EPTL 11-3.2[b]; Ambroise v United Parcel Serv. of Am., Inc., 143 AD3d at 931-932). The complaint purported to assert causes of action on behalf of Brook in his individual capacity, and in his own name, which he based on the fact that he is a surviving distributee of the decedent's estate. Nonetheless, to the extent those causes of action are asserted by Brook in his individual capacity, they must be dismissed, among other grounds, for lack of capacity, and the plaintiffs do not contend otherwise.

Furthermore, the first through tenth causes of were not interposed in an untimely fashion. Only the cause of action alleging negligent infliction of emotional distress is untimely. On a motion to dismiss a complaint as time-barred pursuant CPLR 3211(a)(5), the defendant must establish, prima facie, that the time to commence the action has expired, upon which the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period was tolled or the action was actually timely commenced (see Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [1st Dept 2020]). The executive orders responding to the COVID-19 public-health emergency, beginning with Executive Order (A. Cuomo) No. 202.8, operated not as a suspension but as a toll, extending by approximately 228 days every limitation period running between March 20, 2020, and November 3, 2020 (see Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022]; see also Brash v Richards, 195 AD3d 582 [2d Dept 2021] [explicitly concluding that the executive orders effectuated a toll and not a mere suspension of filing deadlines]; General Construction Law §§ 20, 25-a). Because the latest possible accrual date for the claims asserted against Ruotolo was the date of the decedent's death on March 15, 2020, every such claim was subject to the COVID-19 toll.

The first through tenth causes of action insofar as asserted against Ruotolo were timely interposed in the prior federal action, which was commenced on July 20, 2022. The shortest applicable limitations period, which was the two-year limitations period applicable to the wrongful death cause of action (see EPTL 5-4.1[1]), expired on October 31, 2022, the first business date following 228 days subsequent to March 15, 2022 (see General Construction Law §§ 20, 25-a). Inasmuch as the plaintiffs interposed the wrongful death cause of action against Ruotolo in the prior federal action on July 20, 2022, it was timely asserted against him. Hence, the second, third, fourth, seventh, eighth, ninth, and tenth causes of action—to which longer limitations periods are applicable---were timely interposed in federal court as well.

Contrary to Ruotolo's contention, CPLR 205(a) is applicable to those causes of action. As this court held in determining Motion Sequence 001, the federal court's determination dismissing the plaintiffs' pendent state-law claims for want of supplemental federal jurisdiction did not reach the merits of those claims, and, thus, the dismissal is a termination to which the six-month period of CPLR 205(a) is applicable (see Peterec-Tolino v Harap, 93 AD3d 577, 577 [1st Dept 2012]). Moreover, the federal action was not "terminated" within the meaning of CPLR 205(a) until the plaintiffs' appeals as of right were exhausted, which occurred on August 23, 2024 (see Malay v City of Syracuse, 25 NY3d 323, 325 [2015]; Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014, 1016-1017 [1998]). Hence, the first through tenth causes of action asserted in this action were timely interposed on January 5, 2024, even if the six-month period were measured from the August 21, 2023 dismissal by the District Court, which would have required recommencement and service of process to have been effected on or before February 21, 2024, and not the August 23, 2024 affirmance of the Second Circuit, which actually required recommencement and service of process to have been effected on or before February 24, 2025.²

Ruotolo's two arguments, raised for the first time in reply, do not alter that conclusion. His contention that the plaintiffs never appealed the dismissal of the state-law claims, so that it became final upon entry of the District Court' judgment, is the same argument this court rejected in determining Motion Sequence 001. The plaintiffs appealed from the entirety of the federal court judgment, and the scope of the issues that the plaintiffs elected to brief on their federal appeal does not change the date on which the federal action terminated, which was August 23, 2024, the date that the plaintiffs' appeals as of right were exhausted (see Lehman Bros. v Hughes, Hubbard & Read, 92 NY2d at 1016-1017). In any event, it was unnecessary for the plaintiffs to address the merits of the dismissed state-law claims in the federal appeal brief because the District Court itself did not address them, and the only relevant issue to be considered by the Second Circuit was whether the plaintiffs properly asserted a cause of action under federal law to which the state-law claims could properly be appended.

Although the court notes that CPLR 205(a) also requires that "service upon defendant [be] effected within such six-month period" (see Vitti v Macy's Inc., 2018 NY Slip Op 32809[U] [Sup Ct, NY County, 2018]), since the plaintiffs had until February 24, 2025 to both commence this action and serve process upon Ruotolo, and they effectuated service on March 22, 2024, CPLR 205(a) applies to all causes of action that the plaintiffs asserted against Ruotolo in the federal action (see HSBC Bank USA, N.A. v Hillaire, _____AD3d_____, 2026 NY Slip Op 00353 [2d Dept, Jan. 28, 2026] [comparing the CPLR 205(a) requirement that service be "effected" within six months of prior dismissal with CPLR 205-a requirement that service be "completed" within that six month period]). Hence, there is no merit to Ruotolo's contention that service was untimely under the deadline imposed by CPLR 205(a).

In connection with the applicability of CPLR 205(a), the eleventh cause of action, which sought to recover damages for negligent infliction of emotional distress, stands on a different footing than the first through tenth causes of action. As the record in the federal court action reflects, and the plaintiffs do not dispute, that claim was not interposed in the federal action. It is thus not entitled to the benefit of CPLR 205(a), and its timeliness must be measured from the date of its accrual. A cause of action to recover for negligent infliction of emotional distress must be interposed within three years of its accrual (see CPLR 214[5]; Kramer v Meridian Capital Group, LLC, 201 AD3d 909, 912 [2d Dept 2022]). To the extent that such negligent infliction of emotional distress continued until the date of the decedent's death on March 15, 2020, the limitations period applicable thereto, taking into account the COVID-19 toll, would have expired on October 30, 2023, the first business date after the lapse of the 228-day tolling period (see General Construction Law §§ 20, 25-a). Since this action was commenced on January 5, 2024, the eleventh cause of action was not timely interposed.³ Accordingly, the eleventh cause of action must be dismissed as barred by the applicable statute of limitations.

The "absolute litigation" privilege urged by Ruotolo attaches to statements, and not to conduct. Thus, that privilege does not, in and of itself, bar all of the plaintiffs' claims against Ruotolo. Statements made by a party, witness, or counsel in the course of, or preliminary to, a judicial proceeding are absolutely privileged, regardless of motive, provided that they are material to the proceeding (see Gottwald v Sebert, 40 NY3d 240, 253 [2023]; Front, Inc. v Khalil, 24 NY3d 713, 718 [2015]; Park Knoll Assoc. v Schmidt, 59 NY2d 205, 208-209 [1983]), and may extend beyond claims sounding in defamation (see TRB Acquisitions LLC v Yedid, 215 AD3d 40, 44 [1st Dept 2023]); a litigant may not avoid it by repleading a barred claim under a different label, such as prima facie tort (see Casa de Meadows, Inc. (Cayman Islands) v Zaman, 76 AD3d 917, 921 [1st Dept 2010]). To the extent the claims against Ruotolo rest on his statements in the guardianship proceeding, they are barred. But the gravamen of the complaint not only involves his statements, but, rather, his conduct as guardian, his placement and care decisions, his direction of staff, his failure to respond to warnings, and his handling of the decedent's finances, which the privilege does not reach. The privilege therefore bars only the statement-based components of the claims, but does not bar the conduct-based components.

A dismissal on the ground that a prior action by a plaintiff is pending for the same relief against a defendant is discretionary (see CPLR 3211[a][4]; Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975]), and the prior proceeding must be one between the same parties for the same or substantially the same relief (see Healy v Dentcare Delivery Sys., 129 AD2d 557, 557 [2d Dept 1987]). As of the date when this motion was fully submitted, the decision on the plaintiffs' appeal in the federal action already had been issued, as had several of the plaintiffs' other appeals. Hence, there is no basis upon which to dismiss the complaint herein on the ground that a prior action is pending for the same relief.

Ruotolo's reliance on the doctrine of res judicata theory also fails. "Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; see Matter of Reilly v Reid, 45 NY2d 24 [1978[ ]). As a general rule, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). "The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again" (Matter of Hunter, 4 NY3d 260, 269 [2005]). Ruotolo's reliance on the federal court judgment of dismissal for his argument that res judicata bars the action against him is misplaced; a dismissal that does not reach the merits of the state-law claims cannot bar their relitigation (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13 [2008]; McLearn v Cowen & Co., 60 NY2d 686, 689 [1983]), while the federal court dismissed those claims for want of supplemental federal jurisdiction, never reaching the merits of those claims. The court also rejects his contention that the outcome of the guardianship proceeding is res judicata as to the causes of action in the current matter, since the final judgment in that state-court proceeding only determined that the decedent was incapacitated, appointed a guardian, and vacated the subject health-care proxy and power of attorney. At that stage of the proceeding, the Supreme Court could not have entertained the plenary tort claims asserted in this action, and his challenged conduct largely post-dates the determination in that proceeding (see SEC v First Jersey Sec., 101 F3d 1450, 1464 [2d Cir 1996]).

Nonetheless, collateral estoppel bars relitigation of the fourth, seventh, and eighth causes of action. Collateral estoppel bars a party "from relitigating in a subsequent action an issue clearly raised and decided against that party in a prior action" (Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 23 [1st Dept 2014]; see Russell v New York Univ., 42 NY3d 377, 384 [2024]; Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 515 [1st Dept 2016]). To successfully invoke the doctrine, "the issue in the second action must be identical to an issue which was raised, necessarily decided and material in the first action," and "the party to be precluded must have had a full and fair opportunity to litigate the issue in the earlier action" (Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d at 23). Extrinsic evidence of the determination is properly considered on a motion under CPLR 3211(a)(5) (see Karakash v Trakas, 163 AD3d 788, 789 [2d Dept 2018]). The guardianship court's August 27, 2023 decision and order was rendered after a contested, multi-day hearing, at which Brook cross-examined Ruotolo. After the hearing, the court found that Ruotolo had testified credibly, and rejected Brook's assertions that the proceeding had been "rigged," or was the product of a conspiracy. The propriety of Ruotolo's accounting, the reasonableness of his compensation, and his credibility on the matters as to which Brook claimed he testified falsely are identical to, and were necessary to, the allegations underlying of the fourth cause of action (breach of fiduciary duty), the seventh cause of action (fraudulent billing), and the eighth cause of action (unjust enrichment), as well as the financial-gain contentions underpinning the ninth cause of action (Judiciary Law § 487) and tenth cause of action (fraud on the court).

The plaintiffs' contention that they lacked a full and fair opportunity to litigate the issues described above is unavailing, as is their argument that the pendency of the federal appeal precluded the application of collateral estoppel, since the Second Circuit affirmed the District Court's judgment on August 23, 2024, rendering that argument academic. Moreover, the court rejects their argument that the relevant merits of the guardianship court's determinations were never reviewed on appeal because the decedent died before the relevant appeal could be determined. Although it is true that, due to the decedent's death, the Appellate Division, First Department, dismissed, as academic, the plaintiffs' appeal from the January 3, 2020 order which had appointed Ruotolo as a temporary guardian and had vacated the 2006 healthcare proxy and power of attorney that the decedent had given to Brook (see Matter of Muser, 192 AD3d 429, 429 [1st Dept 2021]), the Appellate Division affirmed, on the merits, the guardianship court's May 28, 2020 order directing the temporary guardian to retain $500,000 from the decedent's estate to pay administrative expenses related to the guardianship, including attorney's fees (see Matter of Muser, 195 AD3d 520, 521 [1st Dept 2021]). The Appellate Division expressly rejected the plaintiffs' contention that the issue of the validity and amount of administrative fees and expenses related to the guardianship should have been deferred to the Surrogate's Court (see id.).

Moreover, the Appellate Division also affirmed the guardianship court's September 24, 2020 order denying Brook's motion seeking to compel the decedent's brother, Howard Muser, who was the petitioner in the guardianship proceeding, to comply with discovery demands, and declining to sign subpoenas that Brook had emailed to chambers. That Court explained that

"[t]he majority of petitioner's appeal is directed at challenging the appointment of a guardian in the first instance. However, the merits of the underlying guardianship application have already been the subject of an unsuccessful appeal before this Court (Matter of Muser v Muser, 192 AD3d 429 [1st Dept 2021], lv denied 37 NY3d 914 [2021]), which we will not now disturb"

(Matter of Muser, 206 AD3d 563, 563 [1st Dept 2022]), and that, "[a]s to the merits of this appeal, Supreme Court providently exercised its discretion in denying the motion to compel and declining to sign the subpoenas emailed to chambers" (id.). In this latter respect, that Court concluded that

"[t]he discovery sought was related to the fee applications of private attorneys and other court appointees in this guardianship proceeding, which is a matter that falls within the court's discretion. With respect to both orders, the court properly determined that the documents requested are not necessary in determining a fee award, were not tailored to obtaining any relevant information, and that the requested information would have unduly delayed the proceeding"

(id. at 563, 564 [citations omitted]).

This court thus concludes that the plaintiffs misapprehend the issue preclusion that must be recognized here, which rests not on the merits of the guardianship proceeding writ large, but on the specific compensation, accounting, and credibility determinations which they were free to, and did, appeal. Although the court recognizes that disclosure in a special proceeding is more limited than in a plenary action (see CPLR 408; Matter of Freedom Care LLC v New York State Dept. of Health, 242 AD3d 573, 575 [1st Dept 2026]), the court confines the preclusive effect to the issues actually and necessarily decided. The fee hearing, which afforded the plaintiffs multiple days of cross-examination and submissions, furnished the plaintiffs with a full and fair opportunity to litigate those issues. That the guardianship court itself recognized that two of Ruotolo's financial decisions—a stock sale and certain beneficiary designations—appeared to have negatively impacted the decedent's estate, at least in the short term, and weighed that in fixing his fee award, does not undermine the preclusive force of the issues it decided. Hence, the fourth, seventh, and eighth causes of action must be dismissed on the ground of collateral estoppel.

Crucially, quasi-judicial immunity is the principal ground on which the entirety of the complaint must be dismissed insofar as asserted against Ruotolo. As this court observed in determining Motion Sequence 002, "someone appointed by a court to act as a neutral or quasi-neutral guardian, guardian ad litem, forensic evaluator, or court evaluator is cloaked with quasi-judicial immunity (see Mosher-Simons v County of Allegany, 99 NY2d 214, 220 [2002]; Davila v Orange County, 229 AD3d 500, 502 [2d Dept 2024]; Tripi v Alabiso, 189 AD3d 2133, 2134 [4th Dept 2020]; Young v Campbell, 87 AD3d 692, 694 [2d Dept 2011]; Ashmore v Lewis, 112 AD3d 508, 508-509 [1st Dept 2013])." A temporary guardian appointed under Mental Hygiene Law article 81 falls squarely within that category of persons who are to be afforded immunity. The doubt that this court expressed in the order determining Motion Sequence 002 was confined to whether an attorney appointed to act as an advocate for a party would be entitled to the same immunity; Ruotolo is not such an advocate, but a guardian, and that potential exception thus is not applicable here. The federal courts also have applied the principle to court-appointed guardianship participants, recognizing that immunity "has extended to . . . court-appointed doctors and psychiatrists, and court-appointed evaluators in guardianship proceedings" (McKnight v Middleton, 699 F Supp 2d 507, 526-527 [ED NY 2010]).

The acts of which the plaintiffs complain were undertaken within the scope of Ruotolo's appointment as a temporary guardian. The immunity "is circumscribed to claims arising from the performance of the specific judicially delegated function," and is available where the appointee "functioned as an extension of the court and was acting within the scope of the court's order" (Mosher-Simons v County of Allegany, 99 NY2d at 220). Ruotolo's placement and care decisions, his communications with the court, and his fee and accounting reports and decision were all undertaken in performance of the functions that the orders of appointment had delegated to him. The January 3, 2020 order empowered him to consent to medical procedures and to pay the bills necessary to maintain the decedent in an appropriate facility, and the guardianship court settled his account and approved his conduct after a contested hearing. Such acts are immune, notwithstanding allegations that they were performed maliciously or were wrongly decided, as the remedy for a guardian's asserted error in the exercise of his delegated powers lies in review of the guardianship court's orders, not in a plenary action for damages (see Mosher-Simons v County of Allegany, 99 NY2d at 219-220).

The case authority on which the plaintiffs principally rely does not aid them. They invoke the rule that a conservator or guardian is entitled to quasi-judicial immunity only for acts expressly authorized or approved by the appointing court (see Gross v Rell, 695 F3d 211 [2d Cir 2012] [applying Connecticut law]). Applying the principles articulated in Gross, this court nonetheless concludes that immunity still attaches to Ruotolo's conduct, because the guardianship court approved Ruotolo's final account and rejected the claims of misconduct and conspiracy after a contested hearing. The court rejects the plaintiffs' contention that Ruotolo is not entitled to immunity because exceeded the authority of his appointment by placing the decedent in a nursing home in the absence a hearing pursuant to Mental Hygiene Law § 81.36(c). This act did not remove Ruotolo's conduct from the scope of his appointment, inasmuch as the guardianship court's January 3, 2020 order empowered him both to consent to medical procedures and to pay the bills necessary to maintain the decedent in an appropriate facility, and the placement was an exercise of those granted powers. An erroneous exercise of a power that has in fact been granted is the paradigm of conduct that quasi-judicial immunity protects (see Mosher-Simons v County of Allegany, 99 NY2d at 220).

Nor do the plaintiffs' conspiracy allegations defeat Ruotolo's entitlement to immunity. The plaintiffs invoke the principle that there is no immunity for participating in a conspiracy to present false testimony (see San Filippo v U.S. Trust Co. of NY, 737 F2d 246, 254-255 [2d Cir 1984]), but its predicate is absent here, since the federal courts determined that the plaintiffs had failed adequately to plead a conspiracy between Ruotolo and any state actor, that determination was affirmed, and the guardianship court, after a hearing, rejected the conspiracy and rigging assertions (see Yapi v Kondratyeva, 340 Fed Appx 683, 684-685 [2d Cir 2009]). The conclusory conspiracy allegations furnish no predicate to defeat the immunity to which Ruotolo is entitled. Hence, the complaint must be dismissed in its entirety insofar as asserted against Ruotolo, including the second and third causes of action insofar as they are asserted by Brook in his capacity as the personal representative of the decedent's estate.

Because the complaint is being dismissed against Ruotolo on the ground of quasi-judicial immunity, and, as to certain causes of action, on other, additional grounds, any further legal conclusions would be dicta (see Quiogue Prop. Mgt., LLC v Torres, 240 AD3d 628, 629-630 [2d Dept 2025]). Were the court nonetheless to consider whether the pleading stated a cause of action (see CPLR 3211[a][7]; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), it would be constrained to dismiss the first cause of action, alleging a violation of the New York Constitution, since the plaintiffs pursued and exhausted the alternative remedy of an action under 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78 [2001]), and the eighth cause of action, seeking to recover for unjust enrichment, would constitute an impermissible collateral attack on the guardianship court's fee order (see Matter of Wallens, 9 NY3d 117, 122 [2007]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]). The court would also be constrained to dismiss the seventh cause of action (fraudulent billing), ninth cause of action (violation of Judiciary Law § 487)⁴ , and tenth cause of action (fraud on the court), for want of any allegation of the plaintiffs' own reliance on Ruotolo's purported intent to deceive the court, and because a damages action attacking a judgment as fraudulently procured lies only via a motion to vacate (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 827 [2016]; Suzuki v Greenberg, 220 AD3d 604, 605 [1st Dept 2023]; Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215 [1st Dept 1995]).

The court would, in addition, be constrained to dismiss the eleventh cause of action (negligent infliction of emotional distress) for failure to state a cause of action, as well as because it was time-barred, due to the absence of any duty owed by Ruotolo to Brook in the latter's individual capacity (see Sacino v Warwick Val. Cent. School Dist., 138 AD3d 717, 719 [2d Dept 2016]). With respect to that cause of action,

"[i]t is well-settled that a person 'to whom a duty of care is owed . . . may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations' (Johnson v State of New York, 37 NY2d 378, 381 [1975] [citations omitted]). A breach of the duty of care 'resulting directly in emotional harm is compensable even though no physical injury occurred' (Kennedy v McKesson Co., 58 NY2d 500, 504 [1983]) when the mental injury is 'a direct, rather than a consequential, result of the breach' (id. at 506) and when the claim possesses "some guarantee of genuineness' (Ferrara v Galluchio, 5 NY2d 16, 21 [1958])"

(Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6 [2008]). "A cause of action for negligent infliction of emotional distress generally requires [the] plaintiff to show a breach of duty owed to [him or] her which unreasonably endangered [his or] her physical safety, or caused [him or] her to fear for [his or] her own safety" (A.M.P. v Benjamin, 201 AD3d 50, 57 [2d Dept 2021] [citations and internal quotation marks omitted]; see Schultes v Kane, 50 AD3d 1277, 1278 [3d Dept 2008]). Since there is no allegation that the decedent herself experienced fear due to Ruotolo's conduct, this claim failed to state a cause of action (see Padilla v Verczky-Porter, 66 AD3d 1481, 1483 [4th Dept 2009]). In any event, a claim to recover for negligent infliction of emotional distress usually cannot be asserted where, as here, it is essentially duplicative of other tort causes of action (see C.T. v Valley Stream Union Free Sch. Dist., 201 F Supp 3d 307, 327-328 [ED NY 2016]).⁵

That branch of Ruotolo's motion which was pursuant to CPLR 3024(b) to strike the allegations in the complaint concerning his purported disciplinary history as a police officer is denied as academic because the complaint is being dismissed in its entirety insofar as asserted against Ruotolo.

The branch of Ruotolo's motion seeking sanctions, costs, and attorneys' fees pursuant to 22 NYCRR 130-1.1 against the plaintiffs and the Estate's counsel, Daniel Isaacs, Esq., is denied. The determination of whether to impose such sanctions rests within the sound discretion of the court (see 22 NYCRR 130-1.1[a]). Although the court is dismissing the complaint insofar as asserted against Ruotolo, and is mindful of the protracted and repetitive history of related litigation, it does not find that the plaintiffs' arguments on tolling, preclusion, and the scope of quasi-judicial immunity, though ultimately unavailing, were frivolous within the meaning of 22 NYCRR 130-1.1(c). The court therefore declines to impose sanctions, costs, or an attorney's fee upon the plaintiffs or their counsel (see Corsini v Morgan, 123 AD3d 525 [1st Dept 2014]).

Accordingly, it is,

ORDERED that the motion of the defendant Joseph Ruotolo, Esq., is granted to the extent that the complaint is dismissed insofar as asserted against him, and the motion is otherwise denied; and it is further,

ORDERED that, on the court's own motion, the action is severed against the defendant Joseph Ruotolo, Esq.; and it is further,

ORDERED that the Clerk of the court shall enter judgment dismissing the complaint insofar as asserted against the defendant Joseph Ruotolo, Esq.

This constitutes the Decision and Order of the court.

DATE 7/10/2026

FOOTNOTES

1.   Although the moving papers also address causes of action sounding in civil conspiracy and intentional infliction of emotional distress, the plaintiffs concede that the complaint asserts neither of those claims as independent causes of action against Ruotolo, with the conspiracy allegations pleaded only as factual support for the enumerated claims, and the court therefore does not separately address them.

2.   Ruotolo incorrectly asserted that this action was commenced on February 20, 2024. An action is commenced by the filing of a summons and complaint (see CPLR 304[a]), which the plaintiffs accomplished on January 5, 2024. This discrepancy is immaterial to the disposition, inasmuch as, in the first instance, February 20, 2024 also falls within six months of the August 21, 2023 District Court dismissal and was prior to the August 23, 2024 Second Circuit affirmance in any event.

3.   Were a claim for intentional infliction of emotional distress asserted against Ruotolo—and, as noted, it was not—it would in any event be untimely, since the one-year limitations period applicable to such a claim (see Teller v Galak, 162 AD3d 959, 960 [2d Dept 2018]), even as extended by the COVID-19 toll, would have lapsed well before the plaintiffs first sued in the federal court.

4.   A Judiciary Law § 487 cause of action proscribes an attorney's engagement in "any deceit or collusion, or consent to any deceit or collusion, with intent to deceive the court or any party," and subjects an offending attorney to treble damages. To the extent that such a cause of action constitutes an exception to the rule generally prohibiting a collateral attack on a judgment via a separate plenary action (see Urias v Daniel P. Buttafuoco & Assoc., PLLC, 41 NY3d 560, 568 [2024]), the plaintiffs nonetheless "failed to [sufficiently] allege that [Ruotolo] engaged in deceit or collusion during the course of the underlying" guardianship proceeding (id. at 569) and, hence, the Judiciary Law § 487 claim fails to state a cause of action.

5.   Although the court is dismissing, on the ground of quasi-judicial immunity, the second and third causes of action, which respectively sought to recover for wrongful death and for the decedent's conscious pain and suffering, to the extent that those causes of action were asserted by Brook in his capacity as executor of the decedent's estate, those claims would otherwise have been facially sufficient. A wrongful death claim requires allegations that the defendant's wrongful act, neglect, or default proximately caused the decedent's death (see Proano v Gutman, 211 AD3d 978, 981 [2d Dept 2022]). In this respect, the complaint does indeed set forth a detailed causal chain, asserting that Ruotolo failed to respond to warnings about the decedent's deteriorating condition, that because certain medications—including one that prevented gastrointestinal bleeding—were not administered, she suffered a bleeding episode requiring cardiopulmonary resuscitation, that the resuscitation fractured a rib, and that the resulting pneumonia caused her death

John J. Kelley, J.