After an Article 81 hearing was held in this matter on November 28, 2005, this court determined that A.C. (hereinafter known as "the person") was incapacitated and required the appointment of a guardian. A.C., the person's father, was appointed the guardian of the person and pursuant to the trust that was implemented in accordance with the Infant Compromise order signed by Judge Howard J. Silver of Bronx County Supreme Court, A.C. was named the co-trustee of the person's trust along with the Bank of New York. The total amount to be held in said trust pursuant to the Infant Compromise order was $7,837,000.

The person is approximately nineteen (19) years old. He suffers from cerebral palsy, mental retardation and a seizure disorder. He is legally blind and is confined to a wheelchair. The trust that was established for his benefit provided for the purchase of a home "in an amount up to $650,000, which amount shall include modifications (calculated at 2004 values)..." (Petitioner's Exhibit B, Article VI, para. 11). At the time of the guardianship hearing , the guardian testified that a home was in the process of being built for the benefit of the person, in Aberdeen, Maryland. The anticipated date of the move to that home was January of 2006.

The guardian who is the petitioner herein, now moves by order to show cause for permission to sell the house located in Aberdeen, Maryland, approve the purchase of a house by the petitioner located in Suffolk County, in an amount not to exceed $949,000 and approve the allocation of $949,000 from the funds of the incapacitated person towards the down payment of said house. The petitioner further seeks an order approving a fee in the amount of $7,500 to Winston Spencer Waters, Esq., for the instant application, and he seeks to retain Winston Spencer Waters, Esq. as his attorney "for all purposes relating to this trust." Additionally, the petitioner seeks payment to Mr. Waters in the sum of one percent of the purchase price for the representation of the person.

In his affidavit submitted in support of the instant application, the petitioner states that he originally chose to relocate to Aberdeen, Maryland but was unaware of the unavailability of services for persons suffering from cerebral palsy in the Aberdeen, Maryland area. He states that there are no suitable physical rehabilitation service centers in that area and the supportive services are spread out for miles throughout the county. The petitioner contends that he has listed the person's present home on the real estate market for the sum of $550,000. He seeks this court's approval to enter into a contract of sale to purchase the property located at 38 Hancock Street, S. Setauket, New York, in Suffolk County. A copy of the real estate listing for said property is annexed to the moving papers as Exhibit D. [*2]

The petitioner claims that the person's trust would "only have to expend the sum of $449,000 because the anticipated sale of the property currently owned by the person will yield at least $550,000 less expenses of approximately $30,000." (A.C. affidavit, para. 13). The petitioner opines that the "physical layout and dimensions" of the house in Suffolk County "satisfactorily meet the needs of the incapacitated person." (A.C. affidavit, para. 14). The petitioner further contends that the State University Medical Center at Stony Brook is "minutes away" and that there is a school specializing in the care and education of persons suffering with cerebral palsy "minutes away."

This court heard oral argument with respect to the order to show cause on May 31, 2007 and afforded the interested parties the opportunity to submit opposition and reply papers after oral argument. The parties who appeared for oral argument were, the petitioner's attorney, Winston Spencer Waters, Esq., Jay J. Sangerman, Esq., an attorney representing the Bank of New York, the court-appointed court examiner, Stephen H. Weiner, Esq., and counsel for the petitioner's daughter, Leroy Wilson, Esq.

The opposition papers submitted by the petitioner's daughter to the instant order to show cause were mostly an attempt to re-litigate the Article 81 proceeding and have the petitioner removed as guardian. Since the Article 81 proceeding was already held more than one and one half years prior to the instant application and since the request by the petitioner's daughter to have A.C. removed as guardian of the person is not properly before the court, any arguments made by her with respect to those issues will not be considered. The only issues before this court are the sale of the property in Maryland and the purchase of the property in Suffolk County.

The petitioner's daughter opposes the motion for the purchase of the house in Suffolk County on the ground that the order and judgment signed by this court, appointing the petitioner as guardian of the person, does not give him the power to manage the person's property. The petitioner's daughter asserts that there is no guarantee that the house in Maryland will sell for $550,000. She further argues that the application should be denied because the petitioner did not annex a proposed contract for the purchase of the house in Suffolk County, he did not indicate in his petition in whose name the Suffolk County house will be titled and he did not provide a list of the potential expenses. Moreover, the petitioner's daughter asserts that in his petition, the petitioner failed to provide information with respect to where he will obtain the funds to pay his attorney, Mr. Waters.

The attorney representing the Bank of New York did not oppose the sale of the Maryland property nor the purchase of another house. The Bank of New York submitted an affidavit from Jane Gannon, an employee of the Bank of New York, which states that the current market value of the trust on May 23, 2007, was $1,241,607.64, not including the market value of the Maryland house, which after sale, "is expected to yield a net of approximately $350,000 to $400,000.^[FN1] The court examiner submitted an affirmation wherein he stated that he believed it would be in the best interest of the person to permit the sale of the Maryland house and permit the purchase of another house in New York. However, the court examiner points out that the purchase price of [*3]the house in Suffolk County far exceeds the original amount permitted in the trust for the purchase of a home.

The court examiner acknowledges that the person will need extensive care for a long term and states that placing such a great deal of his funds into the purchase of the Suffolk County home "seems" excessive. He asserts that New York State has a great deal of services for the disabled and this home cannot be the only reasonable alternative. The court examiner does however, opine that the court should authorize the trust to spend $50,000 above the original limit listed in the trust for the purchase of a home which would be $700,000.

In reply, the petitioner submits an appraisal for the property in Maryland and states, "it is estimated" that the Maryland house will sell for $500,000. He further refers to the affidavit of Susana Santos, submitted by the Bank of New York, which details the expenses for the purchase of the Suffolk County property. Ms. Santos is an employee of the Bank of New York. In her affidavit, Ms. Santos details the expenses associated with the Maryland property. The purchase price of the Maryland house was $513,123.39 and an additional $10,779.42 was spent for improvements to meet the person's needs. The present market value of the Maryland house is $485,000. In her affidavit, Ms. Santos states that the Maryland property is currently listed for sale for $499,999 with Coldwell Bankers of Maryland.

Ms. Santos describes the Suffolk County property in her affidavit as a two-story house which consists of four (4) bedrooms and 2 ½ bathrooms. The first floor includes a living room, dining room, family room, a half bathroom and a maid's room. The second floor consists of three bedrooms and a master bedroom that includes a full bath suite with a jacuzzi and shower stall. In addition, there is an unfinished basement. Mr. Santos states in her affidavit that her understanding is that the petitioner intends to use the maid's room for the person. Moreover, modifications must be made to the house to make it handicapped accessible. The estimated costs for the modifications are approximately $40,000. The most recent real estate taxes paid on the property for 2006 were $16,472.03, homeowners insurance is estimated to be $4,400 with an environmental coverage cost of $63.97 and closing costs associated with the Suffolk County property is estimated at $10,000.

The petitioner, in reply, further provided this court with his plan for the person which includes enrollment at one of two schools in the area of the Suffolk County house, health care to be received at the State University Medical Center in Stony Brook and home care services. Petitioner requests that the sale of the property in Maryland be approved and that the purchase of the property in Suffolk County be approved.

Pursuant to 22 NYCRR §202.67(f), "A petition for the expenditure of the funds of an infant...shall set forth: (1) a full explanation for the purpose of the withdrawal; (2) a sworn statement of the reasonable cost of the proposed expenditure; (3) the infant's age; (4) the date and amounts of the infant's and parents' recovery; (5) the balance from such recovery; (6) the nature of the infant's injuries and present condition; (7) a statement that the family of the infant is financially unable to afford the proposed expenditures; (8) a statement as to previous orders authorizing such expenditures; and (9) any other facts material to the application.

Whether or not the person's funds can be used for the purchase of a house in the person's name is not at issue here. The trust that was established when the Infant Compromise order was approved permitted the purchase of a house in the amount of $650,000 with the person's trust bearing all of the operating costs and expenses of the house. The trust instrument specifically [*4]states that the trustee will not seek contributions from the petitioner, A.C., for costs associated with the residence or furnishing the residence even though he is living in the house as well.

Pursuant to the terms of the trust, the petitioner purchased a house in Aberdeen, Maryland and after moving to said house, discovered that there are no physical rehabilitation service centers available in that area. The petitioner claims that he was "unaware" of the unavailability of these services. However, he should have conducted a proper investigation of the area to determine if services were available prior to moving the person out of the state of New York. Now petitioner seeks to move back to New York in order to obtain the proper services for the person.

The house that petitioner seeks to purchase in Suffolk County costs close to one million dollars. According to the real estate listing annexed to petitioner's moving papers, the house is a 3800 square foot home with five bedrooms and 2 ½ bathrooms. It includes a maid's quarters, an in-ground pool with a waterfall and a built-in barbecue grill. The taxes on the property are listed as $16,472.03. Three of the bedrooms and the master suite are located on the second level of the house which is not accessible to the person. Therefore, the petitioner's intention is convert the family room and maid's room on the first floor into the person's bedroom. The cost of the modifications which will be necessary to make the house accessible to the person is estimated at $40,000.

In Matter of Marmol, 168 Misc 2d 845 (Supreme Court, NY County 1996), the court, discussed the appropriateness of using $125,000 of the disabled infant's income for the purchase of a house in the Dominican Republic. The court, after reviewing other cases where similar requests had been made, extracted guidelines to be followed before judicially authorizing the use of an infants' funds for the purchase of a family home. The guidelines are as follows: "1) by clear proof the parents show they cannot afford the purchase price or a portion thereof; 2) the house has features beneficial to the child and accommodates his physical limitation; 3) the purchase price is fair; 4) title is vested in the child at least to the proportionate degree of his investment in the house; 5) necessary measures are taken, where needed, to safeguard the investment against the profligacy of the parent; 6) parents offer a quid pro quo; and 7) the funds remaining after the outlay are sufficient to meet the future needs of the infant and where the child is expected to remain incompetent, for the anticipated duration of his life." Id. at 853-854.

The aforesaid guidelines are useful to this court even though most are inapplicable because the trust provided for the purchase of a home. The petitioner herein is not required to expend any funds for the costs associated with the house even though as the parent of the person, the petitioner has, " ...a primary duty to support which should not be shifted to the infant'" (citations omitted). Id. at 852. Thus, there is no quid pro quo offered by the petitioner. The petitioner is essentially receiving a windfall as a result of the trust that was established in the Infant Compromise order in that he is not required to expend any funds for providing shelter for his son. Moreover, there is no indication of whether or not the petitioner is currently employed.

Petitioner seeks to relocate back to New York where he can obtain the proper services for the person. Accordingly, that branch of petitioner's motion which seeks court approval to sell the person's residence in Maryland, is granted. However, the request for the approval of the purchase of the house located in Suffolk County is denied.

Petitioner's contention that the person's trust "would only have to expend the sum of $449,000" because the anticipated sale of the property in Maryland will yield at least $550,000 [*5]less expenses of approximately $30,000 is unsupported by any of the evidence submitted. The Bank of New York submitted evidence that the Maryland property is currently listed for sale at $499,999. There is no guarantee that the house will sell for that amount. Furthermore, in addition to the purchase price of the Suffolk County house, additional funds from the person's trust will have to be expended for modifications to the house and for closing costs. Moreover, the taxes on the Suffolk County house are more than triple the amount of the taxes that were paid on the Maryland property.

The petitioner has failed to demonstrate in all respects that the purchase of such an extravagant house is fair and reasonable or beneficial to the person in any manner. The medical facilities at Stony Brook and the schools that petitioner has looked into may provide excellent services for the person. However, those are not the only facilities in the state of New York that can provide the level of care and services that the petitioner requires. Even if they were, the particular house petitioner seeks to purchase is not the only house available near those facilities. The purchase of a house for almost one million dollars is an unnecessary waste of the person's funds particularly when the trust provides for a generous amount of $650,000 for the purchase of a house for the person. Accordingly, the petitioner is only permitted to purchase a home for the person up to the amount provided in the trust.

Petitioner's request that he be permitted to retain Winston Spencer Waters, Esq. as his attorney "for all purposes related to this trust" is denied. Petitioner is the co-trustee of the trust along with the Bank of New York. The Bank of New York is managing the person's funds and petitioner has not provided this court with any reason why the petitioner would require an attorney for any reason related to the person's trust.

Petitioner's request that this court approve a fee of $7,500 to Winston Spencer Waters, Esq. for the instant application, is denied. The application was granted only to the extent that the Maryland house is permitted to be sold. However, the remainder of the petitioner's application is unreasonable and would constitute a waste of the person's funds. Nevertheless, this court will award reasonable fees to Mr. Waters for the instant application only upon submission to this court of an affirmation of services rendered.

This constitutes the decision and order of this court.

Date:August 7, 2007

J.S.C.