The instant proceeding was commenced by Berkshire Bank as the Successor Trustee of the JC First Party Supplemental Needs Trust, Under Agreement Dated Xxxxxx xx, 20xx (hereinafter "Trust"), which is a supplemental needs trust established for the benefit of JC, a xx year-old who is the adult child of PC and MC ^[FN1] .

Amongst other ancillary relief, the petition seeks leave of this Court to expend the sum of up to and including $900,000.00 of trust principle (presently alleged to be $3,007,100.64 ^[FN2] ) to purchase or construct a new home for JC, his mother, and an adult sibling to reside in. In sum and substance, the basis for such request is that PC's home where JC currently resides is inadequate to meet his needs. The petition also seeks relief concerning the ownership structure of the home, proposing that PC have a tenancy in common interest.

A Guardian ad Litem was appointed to protect JC's interest in these proceedings ^[FN3] . The Guardian ad Litem met with JC and his mother and rendered a report based upon that meeting and a review of the documents filed in this proceeding. An extensive conference was held on the record at the return date of the Citation, April 10, 2024. Present were the Guardian ad Litem, Petitioner's counsel, and PC ^[FN4] . Absent was JC's father MC. After the appearance the Court scheduled a conference for May 8, 2024 and orally directed that certain steps be taken concerning JC's living situation and towards the relief sought in the petition.

Thereafter, on April 16, 2024, the Court, on its own motion, directed the Saratoga County Department of Social Services to appear with counsel on the return date of May 8, 2024, and to coordinate the appearance of a representative from Adult Protective Services. Also on April 16, 2024, petitioner's counsel advised the Court that the petition would be withdrawn subject to the Court's direction regarding compensation for the fees of the Guardian ad Litem. The Guardian ad Litem has also filed a supplemental report dated April 24, 2024 that addresses his concerns with Petitioner's request to withdraw the petition and also setting forth his request for the Court to fix his fee for services rendered to date.

CPLR §3217 governs the voluntary discontinuance of a claim. The Court finds that CPLR §3217(a) is inapplicable in this matter (Matter of Stanley, 79 AD3d 1620 [NY App. Div. 4th Dep't 2010]). CPLR §3217(b) provides, in relevant part, that whenever a discontinuance is sought by court order, the court may grant the discontinuance "upon terms and conditions, as the court deems proper." In other words, conditions may be attached to the discontinuance, at the discretion of the court. Examples of conditions that may be attached to discontinuances include a requirement that the plaintiff reimburse the defendant for costs, disbursements and attorneys' fees expended in the defense of the action (Baralan Intl. v Vetrerie Bormioli Ing. Luigi, 215 AD2d 338, 627 N.Y.S.2d 44 [1st Dep't. 1995]; W & HM Realty Partners Co., LLC v Houtenbos, [*2]54 Misc 3d 134[A], 52 N.Y.S.3d 248, 2017 WL 366238 [App. Term 1st Dep't. 2017]). A motion for leave to discontinue action should be granted "absent prejudice to substantial right of defendant or some other inequity" (emphasis added) (Brockman v Turin, 130 AD2d 616, 515 N.Y.S.2d 545, 1987 NY App. Div. LEXIS 46628 [NY App. Div. 2d Dep't 1987]).

While the Court has strongly considered granting Petitioner's request to withdraw its petition with certain conditions, as discussed infra, the Court finds, based upon the information before it, that no conditions would be adequate to render a withdrawal of the petition just or proper.

When a proceeding falls within the Surrogate's Court's jurisdiction, the Surrogate's Court has broad authority in law and in equity to resolve all of the issues raised within the proceeding. (See generally, In re Estate of Dicosimo, 180 Misc 2d 89 [Sup Ct 1999]). Under its general equitable powers, the Surrogate's Court "may directly grant any relief it could grant incidental to another statutory proceeding and it has the power to determine all matters both legal and equitable" (Matter of Estate of Garofalo, 141 AD2d 899 [3d Dep't 1988]. See also, Matter of Baby Boy C., 84 NY2d 91 [1994] [holding "The Surrogate's Court has full equity powers in matters over which it has jurisdiction"]).

Based upon the limited proceedings held thus far, it is clear to the Court that a withdrawal of the petition would not be in the best interests of JC. As such, with the Petitioner having availed itself of the Court's jurisdiction and all necessary parties having consented thereto, the Court will exercise its broad powers of general jurisdiction at law and equity as well as its inherent power under the doctrine of parens patriae to ensure that JC has short and long-term appropriate housing and care. For these and the reasons that follow, Petitioner's request for withdrawal is denied.

Based upon the report, and supplemental report of the Guardian ad Litem as-well-as statements made on the record at the return date of the petition, this Court has serious concerns regarding the welfare of JC and his current residential accommodations.

From the contents of the initial Guardian ad Litem report and from a review of this Court's own records, it is demonstrated that JC is profoundly physically disabled and immobile due to being afflicted with full-body cerebral palsy ^[FN5] . JC is reportedly non-verbal and communicated with the Guardian ad Litem by raising his eyes to signify "yes" and lowering his eyes to signify "no". JC's mother advised the Guardian ad Litem that JC completed high school with a grade average of 92, which if accurate, would indicate that JC is mentally competent and capable of exercising his own judgment. Critical to the application, it should be noted that the Court does not have before it any information from a medical provider as to JC's physical limitations or cognitive abilities.

JC's parents are currently divorced and PC appears to be his primary caretaker. Notably, JC's father MC did not appear on the return date, and from the discussion on the record, he does not appear to have much involvement in JC's day-to-day care, leaving that with PC. Despite his severe physical limitations, JC does not have a guardian and there is no evidence that he has [*3]executed any advanced directives ^[FN6] . It does not appear from the petition or the answers given by PC in response to the Court's questioning on the return date that she is physically able to care for JC to the level that he currently needs as an adult.

The Court was initially concerned with JC's welfare due to several sections of the first Guardian ad Litem report. Specifically, the report states at page three (3) that when Attorney Brody met with JC he was curled up on the floor of PC's residence. PC then picked up JC and placed him in a wheelchair to speak with Attorney Brody. In addition, it is reported that PC advised the Guardian ad Litem that JC sleeps on the living room floor as she is no longer able to carry him up the stairs. Also, at page four (4) it appears from the Guardian ad Litem report that JC only receives a bath twice per month. Moreover, the petition itself states that JC's current living arrangements are "untenable and even unsafe."

On the return date of the citation, the Court made inquiry of PC as to not only the status of the search for a suitable home to meet JC's needs as petitioned for, but also the status of his care. When asked regarding JC's sleeping arrangements, PC responded that JC has been sleeping on the floor since mid-October of 2023 and that it was "not good for him". Per PC, JC has an air mattress to sleep on. When asked why there was no other bed, she replied that "I would have to get a special needs bed".

PC stated that JC's father only sees him two (2) times per month when JC visits the father's home. It is on these occasions where JC receives a full bath. Otherwise, he receives occasional sponge baths from PC.

When inquiry was made as to whether or not there is an aide for JC to assist in his care, PC responded in sum and substance that there was an aide for a period of time, but he moved out of state and she hasn't been able to find a replacement as JC prefers a male and they are difficult to find but that she would try to get one for the new home.

It appears that JC was without an aide during the time-period of August of 2023 to December of 2023 when PC was unable to assist JC due to having severe injuries from a broken leg. During this time period her then-boyfriend helped until sometime in mid-October and there was a mention of a "neighborhood kid" helping to get JC into his transportation vehicle for day camp ^[FN7] between then and December when she was able to walk again.

All in all, given the limited information the Court has regarding JC, the above would appear to be an unacceptable state of affairs for any disabled individual, much less one with $15,000.00 worth of monthly income and in excess of $3,000,000.00 of accumulated principle held in trust to provide for his care and needs.

The Trustee proposes that the Court essentially issue an order giving the Trustee a "blank check" and the authority to enter into a purchase and sale contract to purchase a home suitable for JC, his mother and adult sibling to reside in at a price of up to $900,000.00 without Court approval of the contract itself (R. 15, L. 17-22). The Trustee also proposes granting PC a tenancy in common ownership interest in the home as she would at some point sell her existing home and use a portion of the proceeds as a contribution to a new home.

The petition is void of any specifics of this proposed transaction. For example, there is no specificity as to what particular features of a home would enhance JC's living situation and allow him to thrive in a home environment. The petition seeks the ability to either purchase an existing home (and make modifications) or to expend the funds to construct a new home. However, no steps have been taken by either the Trustee or PC to investigate these options other than PC "monitoring the market". In fact, in contravention of the relief sought in the petition, PC explicitly stated on the record that "new construction is not being considered" (R. 16, L. 16-19).

Based upon the Court's life experience, it would seem that a new construction home would be best suited for the situation at hand.^[FN8] Presumably, such a home could be custom built to specifications that take into account JC's disabilities and abilities. The Guardian ad Litem was in general agreement with this assumption, having been assigned to matters with similar fact patterns in the past wherein an appropriate custom home was constructed for an individual suited to their individual needs.

Concerning to the Court, the Trustee appears to be giving undue deference and discretion to PC, who has no actual legal authority or obligations with regard to JC's care. Indeed, she is referred to by counsel as the "custodial parent". She is not. JC is an adult. PC has no legal authority, and similarly, no legal obligation to provide for his personal care, living arrangements, or to authorize or refuse medical treatment on his behalf should he be unable to do so himself.

Additionally, when responding to the Court's comment that a new construction home was not being looked into, Petitioner's counsel stated "[w]ell, I think I'll leave that to PC. It's not up to the trustee to find what's suitable at this point, obviously." (R. 20 L.14-17). The problem with such reliance is that it does not appear that PC has taken any necessary steps to begin the process normally incidental to seriously seeking a new residence, such as engaging a real estate agent or meeting with builders and developers.

Although a trustee, especially an institutional trustee, may not have the necessary training or experience to engage in such matters, it should not stand idly by when the core purpose of the Trust is to provide the beneficiary "with other benefits and services that will serve to enhance the quality of his life" (See Petition, Exhibit "B", Trust, Article I). The Trust further provides that the Trustee can expend a portion or the entirety of the Trust's funds in its absolute and sole discretion for the benefit of the beneficiary (See Petition, Exhibit "B", Trust, Article II[A]). How is it that the sum of almost 1/3 of the current Trust corpus is proposed to be expended without active involvement of the Trustee to ensure that such expenditure is necessary, proper, and will enhance the quality of JC's life? Although the Court has general jurisdiction over trust matters, and it is reasonable for the Trustee to petition for a court order considering the sum at issue, it remains the Trustee's obligation to ensure that such expenditure is proper, and to demonstrate the same to the Court.

The Trustee has the express authority under the Trust to utilize income or principle to hire a laundry list of professionals to assist the beneficiary or the Trustee in the administration of the Trust (See Petition, Exhibit "B", Trust, Article II[C]). Indeed, the authorization to employ a realtor or other agent "where the Trustee is otherwise reasonably unable to perform itself " is expressly granted by the Trust (See Petition, Exhibit "B", Trust, Article V[A][7]). The Trustee has the further power to construct or purchase a residence and is vested with the "sole and absolute discretion" to determine the best interests of the beneficiary to maintain such a residence (See Petition, Exhibit "B", Trust, Article V[A][13]).

In the case of In re: Mark C. H., 28 Misc 3d 765 [Surrogate's Court, New York Cty. 2010], a guardianship proceeding concerning the a lack of care being provided to an isolated institutionalized ward by an attorney co-trustee with a trust value in the millions managed by an institutional co-trustee, the court directed a representative of the institutional co-trustee to visit with the ward, meet with his care providers, and to ascertain needs that could be satisfied from the funds of the trust; or to secure the services of a qualified professional to so visit, make inquiry, and provide recommendations, Id at 767. The institutional co-trustee thereafter engaged a Certified Care Manager to provide an assessment report. The same can and should be done here.

The Court does not agree with the statement of Petitioner's counsel in her April 16, 2024 correspondence that the application is premature. The application may be lacking in substance, but its core necessity which seeks a better home environment for JC is clearly overdue and of imminent necessity. The April 24, 2024 Guardian ad Litem Supplemental Report agrees with this analysis stating that, "I do not know that the matter needs to be withdrawn as opposed to merely adjourned as needed" and that JC's living conditions "should be improved upon as soon as possible." The Supplemental Report also questions if withdrawal would be in the best interests of JC given the Court's verbal directives at the end of the April 10, 2024 conference.

All parties present and PC agree that the present situation is untenable. PC stated that, "I need to get him off that floor. It's not good for him. It's not good for the rest of the family." (R. 16, L. 23-24). PC also stated, in explaining that new construction was not being considered, due to "the length of time." (emphasis added) (R. 16, L. 16-21). Put plainly, there is no dispute that JC deserves and requires a better living environment as expeditiously as possible.

At a bare minimum, the Court finds that JC's present living situation in a two-story home with no accessible full bathroom to provide for bathing more consistently than twice per month is untenable. This is exacerbated by the fact that JC appears to be sleeping on the first floor, literally on the floor, in the living room. Air mattress or not, there must be better alternatives and medical devices available which would drastically improve his present state of affairs near-term, given the financial resources available.

Dismissal of the instant petition will only further serve to delay JC's relocation to a setting which better serves his needs. The Court thus, declines to dismiss the petition. It is also clear that PC needs assistance in caring for JC and perhaps with locating private care providers as-well-as consultants and professionals to assist in the search for a new home. As such, the Court refers this matter to Saratoga County Department of Social Services to take any and all appropriate steps to investigate this matter to determine the appropriateness, or not, of JC's present circumstances and assist in whatever manner the Department is able in planning an [*4]appropriate home environment during the pendency of this proceeding ^[FN9] .

The Surrogate's Court bears the ultimate responsibility of deciding what constitutes reasonable legal compensation for a Guardian ad Litem, and this determination rests within the sound discretion of the Surrogate's Court, see Matter of Rose BB., 35 AD3d 1044, 1045-1046 [3d Dept 2006] [internal quotation marks and citation omitted]; see also Matter of Massey, 73 AD3d 1179, 1179-1180 [2d Dept 2010]).

"No hard and fast rule exists by which it can be determined what is reasonable compensation for an attorney in any given case" (Matter of Stellis, 216 AD2d 473, 474 [2d Dept 1995]). Relevant factors to consider in determining an appropriate fee award include, among other things, "the time required, the difficulties involved, the nature of the services provided, the amount involved, the professional standing and ability of counsel, and the results obtained" (Matter of Drossos, 26 AD3d 602, 603 [3d Dept 2006]; see Matter of Freeman, 34 NY2d 1, 9 [1974]; Matter of Potts, 213 App Div 59, 62 [4th Dept 1925], affd 241 NY 593 [1925]; see also Pekofsky v Estate of Cohen, 259 AD2d 702, 702-703 [2d Dept 1999]).

The proponent seeking a fee award bears the burden of proving that the services and fees were necessary, fair, and reasonable (Matter of Passuello, 184 AD2d 108, 111 [3d Dept 1992]).

Upon review of Attorney Brody's Attorney Affirmation, the Court finds that the services provided were reasonable and necessary and that his hourly rate of $325.00 is also fair and reasonable in light of the nature and scope of the work undertaken and the benefit that his services have provided to JC thus far, thus the Court will approve an interim fee award. It is therefore,

ORDERED, ADJUDGED AND DECREED, that Petitioner shall not be permitted to withdraw the petition; and it is further

ORDERED, ADJUDGED AND DECREED, that the conference scheduled for May 8, 2024 at 1:00 is cancelled and adjourned to May 29, 2024 at 10:30 at which a representative of the Trustee shall appear; and it is further

ORDERED, ADJUDGED AND DECREED, that Petitioner and PC shall utilize this period of adjournment to comply with this Court's directives placed on the record at the April 10, 2024 conference including: (1) the retention of a home care aide to assist JC and PC; (2) to work with Saratoga County DSS or a private organization to formulate and develop a care plan, a temporary housing plan, and a long-term housing plan sufficient to meet JC's needs during the pendency of this proceeding; and (3) to have made significant progress on a permanent housing plan all of which shall be discussed at the May 29, 2024 appearance; and it is further

ORDERED, ADJUDGED AND DECREED, that an award of interim legal fees be made to Mark D. Brody, Esq., as guardian ad litem of JC in the amount of $5,248.75 and that such sum shall be paid by the Trustee within thirty (30) days; and it is further

ORDERED, ADJUDGED AND DECREED, that any party herein, including the Saratoga County Department of Social Services and the Guardian ad Litem shall be entitled to seek relief at the foot of this Order for specific performance and/or such additional remedies as may be available and/or necessary to enforce or comply with any provision of this Order, including, but not limited to, authorization of expenditures from the Trust.

SO ORDERED!