The application by order to show cause filed by Melissa Lucas, Esq., seeking an order directing petitioner to 1) personally pay the court ordered court evaluator's fees in the amount of $15,900.00 and 2) attend an inquest to determine whether a personal representative for the estate of G.V.S. has been appointed and their identity, and the identification and location of Mr. V.S.' real and personal property, is denied. Ms. Lucas' fees as court evaluator in this matter shall be paid by the estate of Mr. V.S. Ms. Lucas is directed to file a claim in Surrogate's Court for payment of her fees and expenses as court evaluator. Ms. Lucas' application for an order directing the payment of her attorney's fees by petitioner, the personal representative for Mr. V.S.' estate, or from Mr. V.S.' real and personal property, is granted to the extent that petitioner is directed to pay movant's attorney's fees incurred as a result of bringing this application.

This court enjoined and restrained petitioner and any individual acting on her behalf from transferring, selling, or disposing of Mr. V.S.' real and personal property. The temporary restraining order further enjoined and restrained Hawthorne Owners Corporation from transferring, selling, or disposing Mr. V.S.' interest in XXX East XXXX Street, Apt. XX, New York, New York (the "subject apartment").

Petitioner commenced this proceeding seeking to be appointed the guardian of her father. Movant was appointed to serve as the court evaluator to investigate the assertions contained in the petition and to make a recommendation as to whether this court should appoint a guardian for Mr. V.S. After a contentious hearing held over the course of two days, this court granted the petition. By decision dated December 16, 2011, this court appointed petitioner to serve as her father's personal and property management guardian. The decision reads in pertinent part that "[p]etitioner is directed to submit an order and judgment on notice [emphasis added] Said order and judgment should be filed in a timely fashion [emphasis added] due to the exigency of these proceedings."

Petitioner's counsel, Steven C. Bartley, Esq., did not submit an acceptable order and judgment until almost a year later. On March 30, 2012, the first order and judgment was [*2]rejected by this court because it did not include a settlement date. On April 3, 2012, the Guardianship Department sent a note to petitioner's counsel indicating the need to settle the order and judgment with proof of service. The note also included a sample order and judgment. On May 25, 2012, petitioner's counsel resubmitted the order and judgment. By order dated May 30, 2012, this court rejected the second order and judgment because it 1) did not include a settlement date; 2) all parties entitled to notice were not served; and 3) was missing several essential decretal paragraphs. The order further directed petitioner's counsel to contact the Guardianship Department if any additional information or assistance was required in order to submit a corrected order and judgment. Petitioner's counsel did not submit another order and judgment until November 14, 2012. Again, the order and judgment was not noticed. Due to the lack of notice, this court waited to hear from the interested parties entitled to notice.

By order and judgment dated December 10, 2012, this court appointed petitioner as Mr. V.S.' personal and property management guardian. The order and judgment also awarded Ms. Lucas the sum of $15,900.00 to be paid by the guardian in a lump sum for services rendered as the court evaluator in this matter. Shortly thereafter, this court was informed by letter dated December 31, 2012, that Mr. V.S. had passed away on December 28, 2012.

Since Mr. V.S. passed away before the filing of the court ordered bond, petitioner cannot qualify as guardian. To date, no part of the court evaluator's fee has been paid. Ms. Lucas further avers that she has not been informed by petitioner whether a personal representative has been appointed for Mr. V.S.' estate. Movant also argues that petitioner and her counsel's dilatory tactics throughout this proceeding have severely prejudiced her from receiving her court ordered compensation. Had petitioner timely submitted an acceptable order and judgment to the court, movant argues that petitioner would have been able to marshal some of her father's substantial assets.

The parties appeared on the return date of this order to show cause, April 9, 2013. Petitioner's counsel stated that he had failed to correctly calendar the hearing and was only informed of the date by his client the day before. As a result, petitioner had no papers to submit in opposition. Counsel for L.A.D., the co-owner of the subject apartment, submitted an affirmation in partial opposition. Petitioner's counsel indicated to the court that movant's fees would be paid by Mr. V.S.' estate. However, petitioner took issue with movant's retention of her husband as counsel on this application and her request for attorney's fees. After hearing from all parties, this court directed petitioner to file opposition papers by April 23, 2013. Reply papers, if any, were to be filed by May 3, 2013.

Petitioner failed to file opposition papers as directed by this court. On April 29, 2013, petitioner's counsel attempted to file opposition papers. He explained that he could not timely file the papers because his computer was broken. This court notes that at a previous hearing, Mr. Bartley indicated that he failed to timely file another document because his printer was broken. In light of an obvious pattern of baseless excuses, this court rejected petitioner's opposition papers. Petitioner's counsel then sent this court the opposition papers along with an affidavit of late filing. In his affidavit, Mr. Bartley acknowledges that opposition papers were due on April 23, 2013. According to Mr. Bartley, he attempted to file opposition papers on April 22, 2013 at [*3]approximately 4:15 P.M. He was allegedly informed by an unnamed individual that it was too late to do so. Mr. Bartley fails to explain why he did not attempt to file the opposition papers the very next day on the due date. Inexplicably, Mr. Bartley waited until a week after the due date to file petitioner's opposition. This court rejects and disregards petitioner's opposition papers in rendering its decision.

Ms. D opposes the branch of movant's application seeking to restrain the sale and/or transfer of the subject apartment. Ms. D avers that the approximate fair market value of the subject apartment ranges from $299,000.00 to $399,000.00. She and Mr. V.S. owned the subject apartment as tenants in common. Since the value of the Mr. V.S.' estate is estimated to be $3,300,000.00, Ms. D. argues that there is no need to restrain the transfer of the subject apartment to secure movant's court ordered fee of $15,900.00. She further avers that she is in poor health and wishes to relocate to Florida as soon as possible. In order to do so, she must sell her interest in the subject apartment. Accordingly, Ms. D. requests that this court exclude the subject apartment in the restraining order.

In reply, movant asserts that although Mr. V.S.' assets had totaled approximately $3,300,000.00 in 2012, it is unclear what the value of his assets is today. Movant argues that she will be severely prejudiced if this court lifts the temporary restraining order enjoining the sale of the subject apartment. With respect to retaining the services of her husband as counsel, movant contends that there is no ethical prohibition against retaining one's spouse as counsel. She further notes that petitioner's counsel failed to cite to any authority at the hearing to support his argument in opposition to an award of attorney's fees.

The court has the discretion to determine a reasonable award of legal fees for the court evaluator. If the petition is successful and a guardian is appointed, the court evaluator is to be paid out of the incapacitated person's funds. If the petition is dismissed or denied, then petitioner must bear the costs of the proceeding as well as the payment of the court evaluator's fees. Mental Hygiene Law §81.09(f) provides in pertinent part that "[w]hen the person alleged to be incapacitated dies before the determination is made in the proceeding, the court may award a reasonable allowance to the Court Evaluator payable by the petitioner or by the estate of the decedent, or by both in such proportions as the court may deem just."

There is no question that Ms. Lucas is entitled to reasonable compensation for serving in this proceeding as court evaluator. Ms. Lucas submitted an affirmation of services rendered and this court determined that the proper amount to be awarded to her was $15,900.00. Pursuant to Mental Hygiene Law §81.09(f), this court directed the guardian to pay Ms. Lucas out of Mr. V.S.' funds. Petitioner has failed to demonstrate why the amount of her fee is inappropriate.

This matter was concluded with a determination that Mr. V.S. was incapacitated and required the appointment of a guardian. The order and judgment directed the guardian, petitioner herein, to pay Ms. Lucas the sum of $15,900.00 from Mr. V.S.' funds. Since Mr. V.S. died before petitioner could file the court ordered bond and/or file her commission, petitioner will never be able to qualify as guardian. Consequently, petitioner does not have the power as guardian to marshal Mr. V.S.' assets in order to pay Ms. Lucas her rightfully owed fees. This [*4]matter must now be settled in Surrogate's Court.

While this court is sympathetic to Ms. D.'s desire to sell the cooperative apartment, this court declines to alter the temporary restraining order. The temporary restraining order enjoining the transfer of the IP's assets shall remain in place.

Petitioner's sole objection to Ms. Lucas' request for attorney's fees is because Ms. Lucas' attorney also happens to be her husband. The fact that she and her counsel are married has no bearing on whether she is entitled to attorney's fees. Had petitioner timely filed an acceptable order and judgment on notice as directed by this court, there would have been no need for Ms. Lucas to bring this application in the first instance.

Accordingly, Melissa Lucas, Esq.'s application for an order directing petitioner to 1) personally pay the court ordered court evaluator's fees in the amount of $15,900.00; 2) attend an inquest to determine whether a personal representative for the estate of G.V.S. has been appointed and their identity, and the identification and location of Mr. V.S.' real and personal property, is denied. Ms. Lucas is directed to file a claim in Surrogate's Court for payment of her fees and expenses as court evaluator to be paid from the estate of Mr. V.S.

Ms. Lucas' application for attorney's fees is granted. Petitioner is directed to pay movant's attorney's fees associated with bringing this application. Carl Lucas, Esq., is directed to submit a proposed order on notice to this court for the payment of his fees along with an affirmation of services rendered. Ms. D.'s application to vacate the portion of the temporary restraining order enjoining the sale and/or transfer of the subject apartment is denied.

Movant is directed to serve a copy of this decision and order on all parties by certified mail (return receipt not required) and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated:August 2, 2013

ENTER:

________________________

J.S.C.