Petitioner filed a petition for the appointment of a guardian of the person and property of his wife, I.V., an alleged incapacitated person (hereinafter known as "the person"). According to the verified petition dated February 19, 2013, the person was struck by a motor vehicle on February 24, 2010. Since that time, the person has been in a persistent vegetative state with the inability to provide for her personal or property needs.

In the order to show cause, petitioner requested to be appointed the temporary guardian for the sole purpose of commencing a personal injury action on the person's behalf against the operator of the motor vehicle that struck her. Petitioner did not seek to be appointed the person's permanent guardian. This court received the order to show cause on the afternoon of February 25, 2013, the date on which the statute of limitations on the personal injury action would expire. Petitioner averred that the personal injury action would net $25,000.00, the limit of the insurance policy. Pursuant to Mental Hygiene Law § 81.23, this court appointed petitioner as the temporary guardian as there was a "showing of danger in the reasonably foreseeable future of waste, misappropriation, or loss of property of the alleged incapacitated person ." Petitioner's appointment as the temporary guardian would end upon qualification of the permanent guardian. Pursuant to Mental Hygiene Law § 81.10(c)(5), Mental Hygiene Legal Service ("MHLS") was appointed to serve as the person's counsel.

Petitioner's counsel, Daniel T. Saltus, Esq., of Raymond Schwartzberg & Associates, PLLC, and Charles Hargreaves, Esq., of MHLS, appeared at the hearing on May 14, 2013. Neither petitioner nor the person was present. Mr. Saltus explained that petitioner was afraid to appear in court because he is an illegal alien. Petitioner's alien status was not disclosed to this court in the verified petition. Mr. Hargreaves stated that when he visited the person, she was not in a persistent vegetative state and she was actually able to accept service of process. In fact, the person's condition had improved and she ambulates with the use of a wheelchair. Mr. Hargreaves had no knowledge of petitioner's alien status.

In a letter to the court dated May 14, 2013, Raymond B. Schwartzberg, Esq., asserts that based upon information received from petitioner, he believed that the person was in a "virtual [*2]vegetative state, having been in a coma since the accident of February 24, 2010." The person's condition was allegedly confirmed by a visit made by an associate of the firm "a while ago." Mr. Schwartzberg maintains that although the person's condition has slightly improved, the person is still incapacitated and in need of a guardian.

Article 81 of the Mental Hygiene Law does not expressly prohibit an illegal alien from serving as a temporary guardian for the sole purpose of commencing a personal injury action on an alleged incapacitated person's behalf. Therefore, the personal injury action that was timely commenced by petitioner as temporary guardian is valid. Despite petitioner's counsel's questionable conduct, this court remains sensitive to the needs of the person. Since counsel has represented that the person still needs a guardian, a hearing will be held to determine whether the person is indeed incapacitated or in need of a guardian.

22 NYCRR § 130-1.1 allows the court discretion to impose sanctions against an attorney who engages in "frivolous conduct." Conduct is frivolous if "it asserts material factual statements that are false." 22 NYCRR § 130-1.1(c)(3)."In determining whether the conduct undertaken was frivolous, the court shall consider among other issues the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis of the conduct, and whether or not the conduct was continued when its lack of legal and or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party." 22 NYCRR § 130—1.1(c).

In Levy v. Carol Mgt. Corp., 260 AD2d 27 (1st Dept. 1999), the Appellate Division stated that when determining the imposition of sanctions, the court must look at the broad pattern of conduct. The Levy Court further held that "[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large. The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics." Id. at 35. In furtherance of these goals, the court must consider whether the attorney followed the standards of a reasonable attorney. Sakow v. Columbia Bagel Inc., 6 Misc 3d 939, 2004 NY Slip Op 24549 (Sup Ct, NY County 2004); Principe v. Assay Partners, 154 Misc 2d 702 (Sup Ct, NY County 1992, [Lebedoff, J.]).

This court is outraged by the fraud perpetrated by petitioner's counsel. Counsel failed to disclose material facts in the verified petition and made false statements regarding petitioner's alien status and the person's physical and mental conditions. Due to petitioner's counsel's material misrepresentations, this court questions the veracity of all allegations asserted in the verified petition. How can this court be expected to render an informed decision without all of the pertinent facts concerning the parties in this proceeding? If and when petitioner's counsel learned of the change in the person's condition, petitioner's counsel should have informed the court of such. In addition, even though Article 81 of the Mental Hygiene Law does not prohibit the appointment of illegal aliens as temporary guardians, knowledge of petitioner's status may have resulted in this court appointing another individual to serve as the temporary guardian. At most, petitioner's counsel unscrupulously and purposefully misrepresented material facts in order to commence a personal injury action, and at the very least, petitioner's counsel was careless and irresponsible in failing to verify the truth of the allegations in the verified petition. [*3]

However, this court may not sua sponte impose sanctions without a hearing. 22 NYCRR § 130-1.1(d); see also, Haddad v. Haddad, 272 AD2d 371 (2nd Dept. 2000). There are lingering questions that must be determined as to: 1) when petitioner's counsel first learned of the change in the person's condition; 2) what steps were taken after discovery of that fact; and 3) why petitioner's counsel waited until the statute of limitations had almost expired to commence this proceeding. As such, this court will afford Daniel T. Saltus, Esq., and Raymond & Associates, PLLC, a reasonable opportunity to be heard.

Accordingly, all parties, including petitioner, are directed to appear for a hearing to determine whether the person is incapacitated or in need of a guardian on Thursday, June 20, 2013 at 9:30 A.M. in room 408, 851 Grand Concourse, Bronx, New York. The temporary guardian is hereby discharged forthwith.

Daniel T. Saltus, Esq., and Raymond & Associates, PLLC, are directed to appear for a hearing to determine the imposition of sanctions. The hearing will be held on Tuesday, July 2, 2013 at 9:30 A.M. in room 408, 851 Grand Concourse, Bronx, New York.

Petitioner is directed to serve a copy of this order with notice of entry on all parties and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated: May 23, 2013

ENTER:

________________________

J.S.C.

Petitioner's counsel engaged in sanctionable conduct by materially misrepresenting petitioner's alien status and the alleged incapacitated person's physical and mental conditions in petition seeking appointment of guardian