IN RE: the Application of Russell Strotynski AS ADMINISTRATOR OF COOPERSTOWN CENTER FOR REHABILITATION AND NURSING (2026)

Rebecca Turano, Esq. filed a petition on behalf of Russell Strotynski, Administrator of Cooperstown Center for Rehabilitation and Nursing, on July 21, 2025, naming J.O. as an alleged incapacitated person (AIP). J.O. had previously been the subject of an Article 81 proceeding, brought by the same petitioner, represented by the same law firm, in December 2023, with a dismissal in March 2024 due to petitioner's counsel withdrawing the petition (Otsego Supreme Court Index No. EF2023-891). The petition was withdrawn at that time based on J.O. being on Medicaid, with the facility as representative payee for her Social Security income, which was her only income. The AIP's daughter was also agent under a power of attorney and healthcare proxy. The July 2025 petition did not identify any issues with these aspects of the AIP's care at the facility and was thus deemed facially insufficient from the court's perspective, in accordance with Mental Hygiene Law § 81.08. The court communicated this to Ms. Turano via email on July 22, 2025.

On August 27, 2025, Ms. Turano filed an amended petition. The amended petition was substantially similar to the July 2025 petition but did include additional information that the AIP is unable to participate in the Medicaid recertification process. This amended petition did not include information about any amount owed by the AIP to the facility for the cost of her care or any updated information about attempting to work with the AIP's agent to accomplish the tasks needed for the AIP. Despite the weakness of the amended petition, the court determined it met the bare threshold to be advanced, and the court issued an order to show cause in this matter on August 27, 2025, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for J.O. and setting the hearing for October 30, 2025 at 10:00 a.m. On the request of Mental Hygiene Legal Service (3rd Dept.), Alicia C. Rohan, Esq., of counsel, the location of the hearing was converted from the courthouse to Cooperstown Center for Nursing and Rehabilitation.

On October 22, 2025, Ms. Rohan filed a motion to dismiss the petition, citing CPLR 3211(a)(7) for the proposition that the pleading fails to properly state a cause of action. The motion is supported by an attorney's affidavit and memorandum of law. In the motion, Ms. Rohan argues the petition is devoid of necessary factual allegations as required by Mental Hygiene Law § 81.08, including: the petition did not include an attached copy of the AIP's healthcare proxy; much of the petition is a rote form without specific information about the AIP; there are no specific factual allegations about why the AIP cannot make her own medical or personal needs decisions; and the petition is unclear about the current status of the AIP's Medicaid eligibility. The amended petition also does not recite that there was a prior proceeding for this same AIP in early 2024.

Ms. Rohan also indicates that she contacted Tina Garrison, the AIP's daughter and agent, who indicated the facility has never been unable to reach her about any significant medical need on behalf of the AIP.

The motion asks that the petition be dismissed and for the petitioner to bear all costs and fees associated with the proceeding. The motion was made returnable at the same time as the hearing, on October 30, 2025.

Suzan Arden, Esq. filed opposition to the motion on October 28, 2025, supported by an attorney affirmation and six exhibits. Ms. Arden argues that the prior petition was withdrawn because the facility became aware the AIP had an existing healthcare proxy as of the hearing and had not discovered it sooner. She submits the motion "advances an unrealistic standard for determining incapacity" and "fails to consider the practical realities of the situation or the facility's good-faith efforts to act appropriately under the circumstances." She argues the AIP has not yet been granted "standard Medicaid coverage," and that her coverage from the Schoharie County Department of Social Services has remained conditional, with a request for information issued in June 2025 in connection with the AIP's recertification remaining unanswered. She argues the AIP's family is not able to obtain the financial documentation necessary to make the full submission for Medicaid enrollment. Ms. Arden concedes that some of the allegations in the amended petition are inaccurate, but that they do not relate to the "substance" of the petition regarding Medicaid eligibility and the AIP's inability to meet this need. She argues the facility has met its statutory burden regarding the allegations in the petition and the motion should be dismissed.

On October 30, 2025, the court convened the hearing at the facility, at which time Ms. Rohan appeared with the AIP, and Jennifer Neary, Esq. appeared on behalf of the petitioner. Following the hearing, the court made findings to support the appointment of the Commissioner of the Schoharie County Department of Social Services as a limited special guardian of the property to assist the AIP in completing the Medicaid certification/submission, and ordered that limited appointment. Findings and an Order confirming the decision and appointing the Schoharie County Department of Social Services as a limited special guardian of the property to assist the AIP in completing the Medicaid certification/submission were issued by the Court on November 25, 2025.

The Court stated on the record its intention to grant the portion of Ms. Rohan's motion which requests the award of legal fees, costs and expenses associated with the motion and responding to this petition. This decision confirms and clarifies that determination.

In her motion papers, Ms. Rohan argues the amended petition warrants the imposition of sanctions pursuant to the Uniform Rules for the New York State Trial Courts, which in pertinent part indicates:

The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct. 22 NYCRR § 130-1.2.

Under this section, conduct is frivolous if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or it asserts material factual statements that are false. 22 NYCRR 130-1.1(c). In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. Id.

Petitioner's papers in response to the motion do not address this issue. At the hearing, petitioner's appearing counsel acknowledged its case and papers were "riddled with errors"; that "[t]here were errors and flaws throughout"; and that counsel "take[s] full responsibility on our behalf and the facility" for the "waste [of] time" caused to the court and respondent's counsel.¹ Just one example, discussed at the hearing, is that this petition (and the 2023 petition) alleges lack of a known Health Care Proxy, where in fact the existence of a proxy, prepared at the facility and witnessed by its employees, was testified to at the 2023 hearing.

The conduct of this case by petitioner and its counsel is disturbingly similar to a prior case this Court had with the same facility and law firm. Matter of Peterson (D.S.), 85 Misc 3d 1235(A) (Sup Ct Delaware Co 2025). It is also consistent with a prior case with a different facility and firm. Matter of Bender (I.C.), 85 Misc 3d 1205(A) (Sup Ct Otsego Co 2025). The distinction between this case and the cited cases is that both cited cases were dismissed, while this case resulted in the appointment of a special limited property guardian, to complete one identified task.² The appointment of a special limited guardian here, in lieu of the broad person and property guardian requested in the filed petition, is effectively a dismissal of the substantial part of petitioner's case. The Court finds the application of the reasoning of Peterson and Bender appropriate in this case. As in those cases, the Court finds the award of attorney's fees against petitioner or its counsel is appropriate based on the totality of circumstances in this case. Peterson, supra, at *5; MHL § 81.10(f).

Informed by the fees set in the cited cases, as well as countless other Article 81 cases, the Court will save both counsel the time and trouble of submitting and responding to a specific fee application, and set the fee to be paid to respondent's counsel at $2,500.

In furtherance this Decision it is

ORDERED, that the motion to dismiss and for related relief filed by Mental Hygiene Legal Service (3rd Dept.) is DENIED in part and GRANTED in part; and it is further

ORDERED, that Cooperstown Center for Rehabilitation and Nursing and/or Cowart Dizzia LLP shall pay to Mental Hygiene Legal Service (3rd Dept.) the sum of $2,500, with the source of payment to be determined between Petitioner and its counsel; and it is further

ORDERED, that such payment shall be made by Cooperstown Center for Rehabilitation and Nursing and/or Cowart Dizzia LLP within twenty (20) days of the date of this Order; and it is further

ORDERED, that Mental Hygiene Legal Service (3rd Dept.) shall confirm receipt of payment to the Court.

This Decision constitutes the Order of the Court.

Date: September 3, 2026

Hon. David H. Guy

Acting Supreme Court Justice

FOOTNOTES

1.   The quoted language if from the transcript of the proceeding on October 30, 2025.

2.   The special limited guardian appointed in this case has reported the completion of the assigned task — a one-time Medicaid recertification — with discharge and closure of this case imminent.

David H. Guy, J.