Guardian and Ward - Removal of Guardian - Misdemeanor Conviction

Todd Houslanger, Huntington, Court Examiner/Referee.

Frank Schellace, Westbury, pro se, and Steven Leventhal, Roslyn, for respondent.

Joshua Liebman, Garden City, Receiver.

Upon the papers, and after a hearing conducted on July 31, 2025, the motion by the Court Examiner for an order pursuant to Mental Hygiene Law § 81.35 removing respondent Frank Schellace, Esq., as guardian, and for the appointment of a receiver, is granted in its entirety.

A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when

{**88 Misc 3d at 365}" ' "the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just" ' (Matter of Mary Alice C., 56 AD3d 467, 468 [2008], quoting Mental Hygiene Law § 81.35; see Matter of Carmen H. [Thomas H.—Grace H.], 90 AD3d 1049 [2011]; Matter of Joshua H., 62 AD3d 795, 796 [2009])" (Matter of Helen S. [Falero], 130 AD3d 834, 834 [2d Dept 2015]).

The hearing was conducted via a hybrid virtual setting with the court and Special Referee present in the courtroom, and Mr. Schellace appearing virtually from the Suffolk County Correctional Facility located in Riverhead, New York, where he is serving a sentence for a misdemeanor conviction of driving while intoxicated. At the beginning of the hearing, Mr. Schellace, who worked for many years as a principal law clerk and as a special referee in the Supreme Court of Nassau County, declined the suggestion by the Court Examiner to consent to his removal as guardian, and instead contested the application. Consequently, the court then heard testimony by Court Examiner Todd Houslanger, Esq., Special Referee Tracy Auguste, Esq., as well as Mr. Schellace, who appeared with counsel; Mr. Schellace testified in the narrative before he was asked questions by Mr. Houslanger and Ms. Auguste.

The testimony adduced at the hearing clearly demonstrated that Mr. Schellace did not properly fulfill his fiduciary obligations as guardian to Bertha Bressingham, the deceased incapacitated person, by marshalling and protecting her assets, including ascertaining who was residing legally or illegally in her house, and visiting with Bertha in accordance with the order and judgment. In addition, Mr. Schellace did not notify the court about Bertha's death for two years, and he failed to comply with the statutory requirement to submit annual accountings. A final account has yet to be submitted.^[FN1]

Even though the evidence is overwhelming that Mr. Schellace breached his fiduciary obligations to Bertha, Mr. Schellace's removal is mandated by the part 36 Rules of the Chief Judge, which specifically state in section 36.2 (c) (7) that "[n]o person convicted of a felony, or for five years following the date of sentencing after conviction of a misdemeanor (unless otherwise waived by the Chief Administrator upon application),{**88 Misc 3d at 366} shall be appointed unless that person receives a certificate of relief from disabilities" (22 NYCRR 36.2 [c] [7] [emphasis added]; see Matter of S.M., 13 Misc 3d 582 [Sup Ct, Bronx County 2006]; see generally Matter of [*2]Ernestine R., 61 AD3d 874 [2d Dept 2009]).

As indicated above, Mr. Schellace is currently incarcerated in the Riverhead Correctional Facility located in Suffolk County. During his testimony, Mr. Schellace stated on the record that he pleaded guilty to the separate Nassau County and Suffolk County driving while intoxicated matters, receiving misdemeanor convictions on both, and was sentenced to a year incarceration on one of the matters. He testified that he will be serving out his sentence on the Nassau County conviction in the Nassau County Correctional Facility and that he expects to be released on or about December 4, 2025. Despite Mr. Schellace's insistence that he should continue as guardian and that he will compile and file the final account shortly after he is released,^[FN2] he is barred from serving as a part 36 fiduciary pursuant to 22 NYCRR 36.2 (c) (7) for a period of five years from the date of his misdemeanor sentencing, unless one of the exceptions applies.^[FN3]

Accordingly, it is hereby ordered that the motion by the Court Examiner to remove Frank Schellace, Esq., as guardian of the personal needs and property management of Bertha Bressingham, is granted; and it is further ordered that Joshua Liebman, Esq., is appointed as receiver to: (1) marshall all assets, including real and personal property, belonging to Bertha Bressingham; (2) investigate the ownership status of Bertha's former residence; and (3) investigate and seize, using Bertha's social security number and obtaining subpoenas from this court, all cash assets which individuals, entities and institutions may have in their possession which are or were the property of Bertha Bressingham from the time she was found to be incapacitated through the present time; and it is further ordered that Court Examiner Todd Houslanger, Esq., shall remain as Court Examiner/Referee pursuant to the order dated January 13, 2025 (Knobel, J.), to work with the Receiver, and{**88 Misc 3d at 367} compute, report and state the final account on the guardianship of Bertha Bressingham.