Julie A. Clark, Esq., the court appointed court evaluator in the within matter, moves for an order directing Petitioner, Aurora Brice, to pay her court evaluator fees or in the alternative, directing that Petitioner and the AIP, split her fees.

PROCEDURAL HISTORY

Petitioner, Aurora Brice ("Petitioner"), pro se, moved for the appointment of a guardian of the person and property for Mattie Wilks, an Alleged Incapacitated Person (hereinafter "AIP"), by order to show cause dated May 7, 2013. The order contained a temporary restraining order staying the AIP from any further action as Preliminary Executor of her deceased husband's estate and appointed Julie A. Clark, Esq., as court evaluator pursuant to Mental Hygiene Law �81.09. The AIP retained counsel, and on May 20, 2013 submitted objections to the petition. On May 29, 2013, the return date of the order to show cause, the AIP appeared with counsel, Helen Z. Galette, Esq. Petitioner also appeared, but had no witnesses and was unable to proceed. Accordingly, the Court adjourned the matter to July 8, 2013 to afford Petitioner an opportunity to prepare her prima facie case and secure required testimony.

On July 8, 2013, Petitioner, Julie A. Clark, Esq., Helen Z. Galette, Esq., and the AIP, [*2]appeared for a hearing on the petition, in which Petitioner stated on the record that she was ready to proceed. On her direct case, Petitioner called the AIP as her first witness, which was objected to on the basis that the AIP's Fifth Amendment rights would be violated and that the burden of proof would be shifted to the AIP contrary to the intent of Mental Hygiene Law �81. 12(a). The Court sustained the objection and directed Petitioner to proceed with her prima facie case. Petitioner stated that she had no further witnesses and her case consisted of her verbal recitation of the allegations contained in her petition without any supporting evidence. At the conclusion of Petitioner's case, the Court dismissed the petition for failure to establish a prima facie case. Thereafter, Julie A. Clark, Esq. made an oral application for her court evaluator fees in this matter to be paid by the AIP. After oral argument, the parties stipulated that the AIP would pay the court evaluator's fees subject to a review of the court evaluator's fee request. On July 12, 2013, Ms. Clark submitted an affirmation of services requesting compensation for services rendered as court evaluator in the amount of $8,032.50. On July 25, 2013, the AIP submitted an affirmation that the court evaluator fees be chargeable to Petitioner. In response, based on Petitioner's representation that she has "no money" to pay the court evaluator's fee, Ms. Clark submitted an affirmation requesting that the AIP pay her fee or alternatively, that the Petitioner and AIP, split her fees. Based on these submissions, the court set the matter down for a hearing on attorney fees on October 16, 2013, and after a hearing, reserved decision.

In the case at bar, the AIP is 87 years old and has five adult children. Ms. Brice is one of several grandchildren of the AIP. The AIP assisted in raising Ms. Brice since she was five years old and, even in adulthood continued to provide assistance, by paying for Ms. Brice's education and permitting Ms. Brice to live rent free at 600 Madison Street, Brooklyn, New York, one of two properties that the AIP presently owns. Ms. Brice had previously lived with the AIP at her primary residence located at 111 Decatur Street, Brooklyn, New York.

The record establishes that in recent years, Ms. Brice and the AIP have become estranged and the AIP has taken affirmative steps to sever ties with Ms. Brice. In 2010, the AIP revoked Ms. Brice's durable power of attorney; in April 2012, a Family Court order of protection was obtained by Fonda Y.Wilks-Tribble (the AIP's daughter) against Ms. Brice that excluded Ms. Brice from the AIP's home; in June 2013, the AIP obtained a judgment of possession in Kings County Housing Court against Ms. Brice regarding her tenancy at 600 Madison Street; and, in July 2013 the AIP revoked Ms. Brice's health care proxy. Against this family dynamic marked by internal strife, it is clear that Ms. Brice was motivated by bad faith in commencing this guardianship proceeding. It is well settled that a guardianship proceeding is not the proper avenue for the resolution of a family dispute (In re Meisels, 10 Misc 3d 659, 807 N.Y.S.2d 268 [Sup. Ct. Kings Co. 2005] In re Schwarz, 33 Misc 3d 1203(A), 938 N.Y.S.2d 230 [Sup. Ct. Kings Co. 2011], aff'd 96 AD3d 954, 947 N.Y.S.2d 144 [2nd Dept. 2012]).

Mental Hygiene Law § 81.08(a)(3) requires that the petition in a guardianship proceeding contain "a description of the alleged incapacitated person's ability to manage the activities of daily living, behavior, understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living." This section further mandates that the petition contain specific factual allegations as to the personal actions (personal needs guardian) or financial transactions (property guardian) or other actual occurrences that demonstrate that the AIP is likely to suffer harm [*3]because she cannot adequately understand and appreciate the inability to care for these needs (M.H.L. §§ 81.08[a][4] and [5] ). The failure to supply meaningful detailed information and supporting facts in a petition for a guardian, as required by statute are grounds for dismissal of the petition (Matter of Petty, 256 AD2d 281, 682 N.Y.S.2d 183 [1998] Matter of Onondaga County Dept. of Social Services, 162 Misc 2d 733, 619 N.Y.S.2d 238 [Sup. Ct. Onan. Co. 1994] Matter of Rocco,161 Misc 2d 760, 615 N.Y.S.2d 260 [Sup. Ct. Suff. Co. 1994] In re Meisels, 10 Misc 3d 659).

Contrary to the criteria set forth in Mental Hygiene Law � 81.08(a)(3), the petition submitted in this proceeding was based purely on supposition and conjecture. Accordingly, the Court afforded substantial weight to the court evaluator's report (Matter of Crump, 230 AD2d 850, 646 N.Y.S.2d 825 [2nd Dept. 1996]) which established that the AIP is capable of managing her personal and financial affairs, contrary to Ms. Brice's allegations. The allegations raised by Ms. Brice in her petition were made on "information and belief", and do not rely on personal knowledge of the facts regarding the AIP's activities of daily living not being met or demonstrate that the AIP will suffer harm. Ms. Brice's claim that the AIP was the victim of undue influence and financial abuse by family members relied primarily on her own self-serving statements, since she failed to submit any affidavits in support of the petition or produce any witnesses at the hearing. Additionally, Ms. Brice's response to the AIP's objections to the petition also failed to raise any factual allegations which would warrant a guardianship proceeding.

For these reasons, the petition was dismissed.

Mental Hygiene Law �81.09(f) provides that when an Article 81 petition is denied or dismissed, "the court may award a reasonable allowance to a court evaluator...payable by the petitioner or by the person alleged to be incapacitated, or both in such proportions as the court may deem just." In exercising its discretion, the courts have held that the fee shifting provisions of Article 81 are designed not only to be just, but are also intended to discourage frivolous guardianship petitions and those guardianship petitions motivated by avarice and bad faith (Matter of Lyles, 250 AD2d 488, 673 N.Y.S.2d 122 [1998] Matter of Rocco, 161 Misc 2d 760). The courts have consistently held that the appointment of a guardian is a drastic remedy which involves an invasion of the respondent's [AIP's] freedom and a judicial deprivation of......constitutional rights, and such relief must be accorded serious and careful consideration (Matter of Seidner, NYLJ, Oct.8, 1997 at 28, col. 4 [Rossetti J.] Matter of Eugenia M., 20 Misc 3d 1110(A), 867 N.Y.S.2d 373 [Sup. Ct. Kings Co. 2008]). Petitioner, in the instant case, acted in total disregard of the significant responsibility and burden imposed by Article 81, which forced the AIP to incur the costs of retaining counsel to defend against Petitioner's unwarranted guardianship petition. Additionally, the Court notes that Petitioner's overall demeanor and approach during the hearing was at times, hostile and combative, and demonstrated that her overall objective in bringing the proceeding was to settle a score with the AIP and the AIP's adult children, contrary to the intent of Article 81.

Accordingly, in balancing the equities, the court finds that the court evaluator's fees must be borne by the Petitioner in its entirety and that fee splitting would be improper (Matter of Isadora R., 5 AD3d 494 [ 2nd Dept. 2004]; In re Nellie G., 74 AD3d 1065, 903 N.Y.S.2d 494 [ 2nd Dept. 2010] Matter of Rocco, 161 Misc 2d 760; Matter of Onondaga County Dept. of Social Services, 162 Misc 2d 733; Matter of Petty, 256 AD2d 281; Matter of Skinner, 250 AD2d 488, 673 N.Y.S.2d 122 [1998] Matter of Eugenia M., 20 Misc 3d 1110(A)). [*4]

Accordingly, it is hereby,

ORDERED AND ADJUDGED, that Petitioner, Aurora Brice, shall pay Julie A. Clark, Esq. the sum of $8,032.50 within 30 days of this order, said amount representing a fair and reasonable value for services rendered in her capacity as Court Evaluator; and it is further,

ORDERED AND ADJUDGED, that upon failure to render payment as set forth herein, judgment shall be entered against Aurora Brice in favor of Julie A. Clark, Esq. in the amount of $8,032.50; and it is further,

ORDERED AND ADJUDGED, that Julie A. Clark, Esq., serve this Order upon Aurora Brice, Helen Z. Galette, Esq., and all parties previously noticed in this matter.

The foregoing is the Decision and Order of the Court.

ENTER FORTHWITH

________________________Hon. Kathy J. King

J.S.C.

In Mental Hygiene Law article 81 proceeding, court ordered that court evaluator's fee must be borne by petitioner in its entirety and that fee splitting with Alleged incapacitated person would be improper