IN RE: the Application of Laura P. and DAVID H. (2026)

The following papers read on this motion by Lloyd S., the Alleged Incapacitated Person, for an order pursuant to Mental Hygiene Law §§ 81.09(f) and 81.10(f) shifting the payment of attorneys' fees, Court Evaluator's fees, and Court-Appointed Counsel fees to Petitioners

EF PAPERS NUMBERED

Notice of Motion-Affs in Support and Exhibits EF 19-24

Memorandum of Law in Opposition EF 27

Reply Affirmation EF 28

The motion at bar presents an issue which is not specifically addressed by Article 81 of the Mental Hygiene Law: if the petition for the appointment of a guardian is withdrawn or discontinued at any point in the special proceeding,¹ which party or parties — the petitioner and/or the alleged incapacitated person — should bear the expense of the fees awarded to the court appointees for the professional services they rendered in the guardianship proceeding? There is no procedure set forth in Article 81 of the Mental Hygiene Law governing the withdrawal or discontinuance of a proceeding and who should be responsible in whole or in part for the reasonable fees awarded to the court appointees for the professional services they have rendered on behalf of the alleged incapacitated person. (See, e.g., Matter of Lane (Michelle R.), 78 Misc 3d 268, 184 NYS3d 521[Sup. Ct., Nassau County 2022]). These omissions have led to the creation of criteria by appellate courts, as forth below, to fill the void. (see, e.g., Matter of Marjorie T. v Sherwood, 84 AD3d 1255, 1255-1256 923 NYS3d 870 [2nd Dept 2011]).

Lloyd S., the respondent Alleged Incapacitated Person ("AIP"), moves, via his privately retained counsel, for an order, pursuant to Mental Hygiene Law §§ 81.09(f) and 81.10(f), shifting the payment - from the AIP to the petitioners - of the fee awards granted by the Hon. Lee A. Mayersohn (since retired) on December 3, 2025, to the court appointees: the court evaluator, the court-appointed counsel, and the court-appointed temporary co-guardian. The AIP does not challenge the amount of any of the fees assessed. The petitioners oppose the motion on procedural and factual grounds. In reply, privately retained counsel for the AIP requests that the Court should also consider the AIP's motion as a motion for leave to reargue and/or renew the December 3, 2025 determination by the Justice Mayersohn, which required the AIP to pay all of the aforementioned fees. The Court notes that the privately retained counsel represented an interested non-party during the proceeding, Xue Minh Kuang, also known as Cathy, a longtime friend of the AIP, and who was appointed temporary co-guardian for the AIP.

A synopsis of what transpired during the course of this guardianship proceeding is critical to the determination of this motion. Petitioners Laura P. ("Laura P.") and David H. sought to be appointed co-guardians of the person and property of their cousin, Lloyd S., the AIP. The Petition alleged, inter alia, that the AIP suffered a stroke in 2024 and as a result he was dependent upon non-party Xue Minh Kuang ("Cathy") to assist with his activities of daily living. Moreover, based upon specific conversations that the AIP had with petitioner Laura P., petitioners alleged that Cathy was financially exploiting and isolating the AIP, that he was under the rule of Cathy, that he was not permitted to see his family without Cathy's approval, that he had been compelled to change his estate plan so that Cathy would receive everything, and that he was Cathy's captive. Petitioners further relied on representations by the AIP's financial advisor that Lloyd had been drugged following his designation of Cathy as a pay-on-death beneficiary.

Justice Mayersohn subsequently appointed an experienced attorney to represent the AIP, and an experienced court evaluator to recommend whether the AIP needed a guardian, and if so, who should be that guardian. In her report dated March 11, 2025, the court evaluator found that the AIP's health had improved, that he had not been formally diagnosed with a condition requiring permanent guardianship, recommended against appointing a guardian for the AIP, and recommended that the AIP execute a new power of attorney. The AIP did not deny the alarming statements he had made to the petitioners; he instead claimed to the court evaluator that he had been hallucinating when he stated he had been poisoned.

Justice Mayersohn accepted the court evaluator's recommendations and directed court-appointed counsel to the AIP to supervise execution of a power of attorney. However, counsel raised concerns, inter alia, about the AIP's capacity to execute that instrument. Consequently, by order dated May 6, 2025, with the consent of all parties, Justice Mayersohn appointed, pursuant to Mental Hygiene Law § 81.23 [a][1], the court-evaluator and Cathy as Temporary Co-Guardians of the AIP to assist him with his personal needs and property management; Justice Mayersohn also restricted the AIP's relocation, established a care budget, and directed the co-guardians to assist the AIP in surrendering an unoccupied Brooklyn apartment.

Several months later, and after extensive efforts by the parties and the court appointees, and after conferences with the Court, the petitioners, as well as the AIP, agreed that the proceeding should be withdrawn. Petitioners' counsel thereafter filed an affirmation requesting that counsel fees and disbursements, as well as the fees of the court appointees, be paid from the AIP's assets - $ 2.2 million dollars - on the grounds that the petition had been brought in good faith and had significantly benefited the AIP. No opposition was filed. Throughout the proceeding, the AIP was represented by court-appointed counsel. On December 3, 2025, Justice Mayersohn granted an "Order Discontinuing the Proceeding,", directed the Court appointees to be paid from the AIP's assets, and discontinued the proceeding.

Although the instant motion by the AIP to reverse Justice Mayerson's order is procedurally defective, this Court, at the request of counsel for the AIP, deems the motion instead to be a motion for an order pursuant to CPLR §§§ 2221(d), (e) and (f), granting leave to renew and/or reargue the order of this Court dated December 3, 2025 (Mayersohn, J.), and as such is denied in its entirety. "[A] court may vacate its own judgment for sufficient reason and in the interests of substantial justice [citations omitted]" (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68, 790 N.E.2d 1156, 760 N.Y.S.2d 727 [2003]) "as an exercise of its 'inherent discretionary power' " (Urias v. Daniel P. Buttafuoco & Assoc., PLLC, 41 NY3d 560, 568 [fn. 4], 214 N.Y.S.3d 680, 685, 238 N.E.3d 836, 841[2024]). However, for the reasons explained below, there is no factual or statutory or precedential basis upon which this Court should vacate or modify Justice Mayersohn' s December 3, 2025, order.

CPLR § 2221 (f) states in pertinent part that "[a] combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made." The AIP did not identify and adequately support the relief he requested. Nevertheless, "[v]iewed as a motion [for leave to] renew, respondent AIP's motion for modification of Justice Mayersohn's order dated December 3, 2025 failed to present any newly discovered evidence (see CPLR§ 2221 (e) [citation omitted]; Matter of Ida Q., 11 AD3d 785, 786, 783 NYS2d 680 [3rd Dept. 2004]. Moreover, viewed as a motion for leave to reargue, counsel for the AIP failed to demonstrate and identify the material facts or controlling principles of law that Justice Mayersohn allegedly overlooked or misapplied (see CPLR § 2221 [d] [2[; Matter of Ida Q., supra).

The AIP's reliance on Mental Hygiene Law §§ 81.09 [f] and 81.10 [f] is unavailing.

Mental Hygiene Law § 81.09 [f] states in relevant part that "[w]hen a judgment denies or dismisses a petition, the court may award a reasonable allowance to a court evaluator, including the mental hygiene legal service, payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just [emphasis added]" Mental Hygiene Law § 81.10 [f] similarly states in pertinent part that, "The court shall determine the reasonable compensation for . any attorney appointed pursuant to this section. The person alleged to be incapacitated shall be liable for such compensation unless the court is satisfied that the person is indigent. If the petition is dismissed, the court may in its discretion direct that petitioner pay such compensation for the person alleged to be incapacitated [emphasis added]."

In sum " '[t]he court may direct the petitioner to pay such fees or a portion thereof only when the petition is denied or dismissed [emphasis added]' " (Matter of Charles X., 66 AD3d 1320, 1321, 887 N.Y.S.2d 731 [3d Dept 2009] see Matter of Alexander B.P. [Hafner], 165 AD3d 801, 802, 86 N.Y.S.3d 103 [2d Dept 2018]; Matter of Buttiglieri [Ferrel J.B.], 158 AD3d 1166, 1167, 70 N.Y.S.3d 639 [4th Dept 2018]" (Matter of Leonardo V., 237 AD3d 1308, 1309, 231 NYS3d 232 [3rd Dept. 2025]. Thus, in the particular procedural circumstance of when the petition is denied or dismissed, the Legislature, in permitting the shifting of the responsibility of fee payments to the petitioner, "was clearly cautioning those who would bring a frivolous petition, or one motivated by avarice, that they might very well have to bear the financial burden of the proceeding" (Matter of Alexander B.P. (Hafner), supra at 803, quoting Matter of Lyles, 250 AD2d 488, 489, 673 NYS2d 122 [1st Dept.1998]).

The omission by the Legislature regarding the procedure or consequences if a guardianship proceeding pursuant to Article 81 is withdrawn or discontinued, without even referencing the discontinuance of an action pursuant to Civil Practice Law and Rules § 3217  ² , has led the Appellate Division to fill the void by establishing criteria that should be applied when a trial court considers which party or parties should bear the cost of the court-appointees fee awards. In those instances the courts evaluated whether the petition was insufficient on its face, whether the proceeding was brought in bad faith, whether the petitioner was motivated by avarice or possible financial gain, and whether the proceeding lacked merit; in addition, the trial court should also consider the relative financial resources of the petitioner and the AIP, and any special circumstances, such as any benefits derived by the AIP from the filing of the petition for the appointment of a guardian (see, e.g., Matter of Marjorie T. v Sherwood, 84 AD3d 1255, 1255-1256; 923 NYS3d 870 [2nd Dept 2011]; Matter of Kurt T., 64 AD3d 819, 823, 881 NYS2d 688 [3rd Dept. 2009]; Matter of Ida Q., 11 AD3d 785, 786, 783 NYS2d 680 [3rd Dept. 2004]).

Each of these factors weigh decisively in favor of Justice Mayersohn's order requiring the AIP to bear the burden of paying the fees awarded to the court appointees and against shifting the payment of any portion of those fees to the petitioners.

A review of the entire record overwhelmingly supports the conclusion that the petition was brought in good faith by concerned family members who acted responsibly in seeking court intervention after receiving disconcerting statements from the AIP. The petition alleged non-conclusory factual allegations based upon specific comments by the AIP and his financial advisor which drew a picture of an individual who suffered a stroke, lost his primary support system, was dependent upon an individual who solicited financial transfers from him and was, according to the AIP, her captive. The AIP himself claimed that he was prohibited from seeing his family and that he amended his estate plan in his captor's favor. When interviewed by the court evaluator, the AIP did not deny making those statements. Furthermore, the risk of financial exploitation was genuine since the court evaluator noted that AIP possessed substantial assets of approximately $2.2 million dollars.

Moreover, Justice Mayersohn's creative intervention and supervision, in appointing temporary co-guardians based upon reports from the court appointees, led to the proper execution of advance directives which were satisfactory to all involved, the surrender of the AIP's apartment because it was no longer occupied, and the withdrawal of the proceeding because it was no longer necessary. Thus, all of the actions by the petitioners and the court appointees were beneficial to the AIP's personal and property management needs, and his well-being, which is the ultimate goal of Article 81 of the Mental Hygiene Law.

Accordingly, it is hereby

ORDERED that the motion by the alleged incapacitated person ("AIP"), pursuant to Mental Hygiene Law §§ 81.09(f) and 81.10(f), for an order shifting the payment of court-ordered attorneys' fees, court evaluator's fees, and court-appointed counsel fees to the petitioners, is deemed to be a motion pursuant to CPLR § 2221 for an order granting leave to renew and or reargue the order of this court dated December 3, 2026 (Mayersohn, J.), and as such is denied in its entirety; and it is further

ORDERED that the December 3, 2025, order of this Court (Mayersohn, J), directing payment of Petitioners' counsel fees and Court appointees' fees from the assets of the AIP, shall remain in full force and effect, and the AIP shall pay those fees, if he has not already done so, within ten days after the service by counsel for the petitioners, of a copy of this order with notice of entry upon the AIP's attorney, court-appointed counsel, and the court evaluator via NYSCEF and upon the AIP by overnight express mail, and upon all other individuals entitled to notice via NYSEF.

The foregoing constitutes the Decision, Order and Judgment of this Court.

Dated: September 25, 2026

HON. ILENE P. FERN,

A.J.S.C.

FOOTNOTES

1.   Compare Civil Practice Law and Rules § 3217; Emigrant Bank v, Solimano, 209 AD3d 153 [2nd Dept. 2022]

2.   Subdivisions (a) and (b) of Civil Practice Law and Rules § 3217 sets forth the procedure for discontinuing an action or proceeding (see, Emigrant Bank v, Solimano, 209 AD3d 153 [2nd Dept. 2022]); however § 3217 as not been amended to integrate the subsequent enactment of guardianship proceedings and procedure set forth in Article 81 of the Mental Hygiene Law (see, Matter of Lane (Michelle R.), 78 Misc 3d 268, 269 [Sup Ct. Nassau County 2022).

Ilene P. Fern, J.