The relevant facts of this matter are not in dispute. A Mental Hygiene Law article 81 proceeding was commenced by order to show cause on November 17, 2006, by the petitioner, Joseph Monahan (Joseph), seeking an order appointing a guardian for his mother, Mary Monahan (Mary), an alleged incapacitated person. The petition only sought to appoint a guardian for the personal needs of Mary, not property management needs. The petition was dated August 11, 2006 and filed two months later on October 4, 2006.

After several adjournments, the following attorneys appeared at the initial conference with this court on February 8, 2007: counsel for Mary, John G. Dalton, Jr., Esq.; Mary's trial counsel, Brian R. Heitner, Esq.; counsel for Mary's daughter Margaret Monahan Smith (Margaret), John Newman, Esq.; counsel for the petitioner Joseph, Kevin Ryan, Esq.; and the court evaluator, Mary Gold Giordano, Esq.

The court evaluator's report initially suggested the need for an independent guardian, however, the report referred to the need for an independent guardian due to Mary's financial situation and the family's fractionalization. The petition was seeking only a personal needs guardian because Joseph believed that his mother Mary needed to be placed in an assisted living facility or at least receive 24 hour care. All counsel advised petitioner that Mary had been receiving 24 hour care prior to commencement of the proceeding. To alleviate any concerns, all parties agreed to retain a geriatric care manager, Virginia Belling, RN, to conduct an assessment of Mary's living environment and the care being provided. Once again, the only issue addressed in the petition was a request for a guardian for Mary's personal needs and placing Mary in assisted living. Ms. Belling's report concluded that Mary was receiving excellent care living in the home with her daughter, Margaret, and was in no danger. This report was circulated on [*2]March 7, 2007.

A further conference with the court was scheduled for March 22, 2007. In the interim, Mr. Heitner was preparing for a jury trial. A Note of Issue and Jury Demand was served and filed with the Court on February 8, 2007. On March 12, 2007, Mary's attorney, Mr. Heitner, sent a letter to Joseph's attorney, Mr. Ryan, inquiring whether in light of the geriatric care manager's report, his client would be withdrawing the petition for a personal needs guardian. There was no response to that letter. On March 21, 2007, Mr. Ryan contacted Mr. Heitner and requested an adjournment of the conference to allow his client additional time to further review the report. Mr. Heitner reluctantly agreed and the matter was adjourned to April 12, 2007. On April 11, 2007, Mr. Ryan, petitioner's attorney, attempted to adjourn the matter again. Mr. Heitner refused to consent and all parties, except petitioner and Mr. Ryan, appeared in court the next day. On April 12, 2007, Mr. Ryan failed to appear at the court conference and his office was contacted by the court by telephone. At that time, Mr. Ryan was unable to advise the court if his client would withdraw the petition. However, later in the day a letter was sent to the court via facsimile transmission confirming the withdrawal of the petition. The matter was adjourned to May 10, 2007, in order to place the withdrawal on the record. Instead of appearing at the next required scheduled court hearing, two days before the hearing, Mr. Ryan submitted a proposed order which withdrew the petition, but only provided for the payment of the court evaluator's fees. Mr. Heitner objected stating that he, as well as the other counsel, intended to make an application for counsel fees.

Thereafter, all of the parties stipulated that the issue of awarding counsel fees to Mr. Dalton, Mr. Heitner and Mr. Newman would be submitted to the court on paper without the need for a hearing.

The Rules of the Chief Administrator § 130-1.1 (22 NYCRR Part 130) provides that:

The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonable incurred and reasonable attorney's fees resulting from frivolous conduct***.

Conduct is considered frivolous if:

"(1) it is completely without merit in law and cannot be supported by

a reasonable argument for an extension, modification or reversal

of existing law; (2) it is undertaken primarily to delayor prolong the

resolution of the litigation, or to harass or maliciously injure another;

or (3) it asserts material factual statements which are false" (22 NY

CRR § 130-1.1 [c])."

Here, the court finds that the petition was false in at least one material fact. Even a rudimentary investigation into the actual circumstances of Mary's care would have [*3]revealed that she was receiving proper care and that there was no justification for the appointment of a guardian for her personal needs. Indeed, the petition asserted that Mary was in need of 24 hour care even though she had already been receiving such care for months.

Further, the court finds that the petition was commenced to harass, injure and gain an advantage in a prior commenced Surrogate's Court, Nassau County proceeding involving the parties. A credit-shelter trust had been established for Mary pursuant to the Last Will of her late husband. Two of Mary's children, James Monahan (James) and Margaret, are the Co-Trustees of that trust. The trust and Mary's rights to monies from the trust are the subject of the proceeding pending in Surrogate's Court, Nassau County. It is important to note that James is represented by the same counsel, Mr. Ryan, in the Surrogate's Court matter as Joseph in this proceeding.

Joseph's brother James, apparently has refused to authorize the release of funds from the trust for Mary's needs. Further, Margaret, as Co Trustee of the Trust, requested that James approve a reverse mortgage on Mary's home so that Mary would have liquid funds to live on and would be able to remain in her home according to her wishes. If Mary is placed in an assisted living facility, then it would be necessary to sell her home at the current market value. The proceeds of the sale would then be placed in the trust, of which James and Joseph are each 1/5 beneficiaries. A reverse mortgage would obviously deplete their future inheritance. If Mary stays in her home until her death, then pursuant to Mary's late husband's will, Margaret has the option to buy a 50% interest in the residence for $125,000, far below current market value. It is clear that the intent in commencing the proceeding was to gain an advantage in the Surrogate's Court matter. There can be no doubt that Joseph and James would greatly benefit by the sale of the residence prior to their mother's

death and that Margaret's desire to obtain a reverse mortgage for her mother's benefit would decrease the brother's ultimate inheritance.

Finally, the failure to promptly withdraw the petition when it was clear to everyone involved that there was no merit to the allegations resulted in undue and unnecessary delay and costs. This case was commenced in November 2006 and lingered due to numerous adjournments and delay tactics by petitioner until April 2007, when petitioner had no choice but to withdraw the proceeding.

The petitioner's reliance on the court evaluator's report that indicated the need for a guardian is misplaced. A careful reading of the court evaluator's report reveals that the court's evaluator's main concern was Mary's ability to handle her own finances. The petition, however, was only seeking a guardian for her personal needs not property management needs.

Accordingly, the court finds that the petitioner engaged in frivolous conduct as defined by § 130-1.1 (see Barco Auto Leasing Corp. v Grant Thorton, LLP, 298 AD2d 341 [2d Dept. 2002]).

The court has thoroughly reviewed the affirmations of services and costs provided by counsel regarding this guardianship proceeding. The court finds the costs and fees requested in the affirmations of services reasonable under the circumstances of this case. Therefore, the petitioner, Joseph Monahan, is directed to pay Mr. Heitner's costs and fees in the amount of $22,347.90; Mr. Dalton's costs and fees in the amount of $10,437.61; Mr. Newman's costs and [*4]fees in the amount of $7,950.00; and Ms. Giordano's costs and fees in the amount of $6,545.30. The awards shall be paid directly to the attorneys on or before October 31, 2007. In the event these awards are not paid, each counsel may enter a money judgment for the amount awarded without further notice upon an affirmation of non-compliance and the clerk shall enter judgment accordingly.

This constitutes the decision and order of the court.

Dated: September 21, 2007Angela G. Iannacci, J.S.C.