The Court issued an order to show cause in this matter on November 27, 2024, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for I. C. and setting the hearing in this matter for January 3, 2025 at 10:00 a.m. at the Delaware County Courthouse.

On January 2, 2025, the Court was notified by staff at the Moskowitz Legal Group, petitioner's counsel's office, via email that Ms. C. would be transported to the Courthouse for the hearing, but she has a "history of refusing to leave the facility" and warned she may not appear for the hearing. Mental Hygiene Legal Service (3rd Dept.), Alicia C. Rohan, Esq., of counsel, was expecting Ms. C. to appear and participate in the hearing at the Courthouse. Ms. Rohan responded with a request that the hearing take place at the facility, which the Court was amenable to, but staff at petitioner's counsel's office requested an adjournment, via email, because petitioner's counsel's office is located in Hewlett, New York, approximately 177 miles from Robinson Terrance Rehabilitation and Nursing Center (hereinafter the "Facility"). Ms. Rohan objected to such adjournment.

Considering the logistical difficulties on the eve of trial, the Court converted the January 3, 2025 hearing date to an attorney's conference via Microsoft Teams. Ms. Rohan appeared; Malkie Scher, Esq. appeared on behalf of petitioner; and Amy Merklen, Esq. appeared on behalf of the Delaware County Department of Social Services, on notice of this proceeding. At the conference, the Court confirmed that petitioner's counsel's office must be present and ready to proceed at the new hearing date, and all counsel agreed to January 10, 2025 at 10:00 a.m. at the Facility for that adjourned date.

On January 8, 2025, Jacob Hirsch, Esq., of petitioner's counsel's office, emailed the Court and counsel of record, indicating that his office is Sabbath observant and an attorney from their [*2]office would be unable to appear on the agreed upon rescheduled hearing date of January 10, 2025, a Friday. The email confirmed local counsel would appear in the stead of petitioner's counsel's office. By email, the Court asked Mr. Hirsch to provide the name and contact information of local counsel.

On January 9, 2025, at 4:33 p.m., Mr. Hirsch emailed the Delaware County Supreme Court Chief Clerk and counsel of record, asking for an adjournment of the hearing due to his office's inability to obtain local counsel to appear in their stead at the hearing. The email was forwarded to the Court by the Chief Clerk. Ms. Rohan objected to such adjournment and filed an email requesting the petition be dismissed, treated by the Court as a motion to dismiss. This was communicated to petitioner's counsel, who was given to close of business January 13, 2025 to file responding papers, which Mr. Hirsch did. The motion is before the Court on submission.

This case was originally scheduled to be heard on January 3, 2025. The day before the scheduled hearing, petitioner's counsel communicated a concern that the respondent might refuse transportation to the Courthouse the next day. The matter had been scheduled for a hearing at the Courthouse more than a month previously, so petitioner was aware of its responsibility to transport the respondent if necessary, but never raised a concern about her attendance until the day before the scheduled hearing.

Respondent's counsel appropriately requested the hearing be held at the Facility, as anticipated by the statute. MHL §81.11(c). It had been communicated to petitioner's counsel at the outset of the case that if the hearing were to take place at the Facility, counsel's physical appearance at the hearing would be required. Petitioner's counsel communicated an inability to attend the hearing at their client's Facility. The technical platform utilized by the Court system for remote proceedings was not available at the Facility, so the Court converted the scheduled hearing to an attorney conference, to be held via Teams at the time originally scheduled for the hearing.

At the conference, counsel appearing for the petitioner was manifestly unprepared to present petitioner's case, had the hearing been held as scheduled. Counsel was unable to identify the witnesses who would be called, or the substance of their testimony. After expressing that the witnesses had been prepared by their firm, when pressed for details by the Court of who had prepared the witnesses, counsel was unable to identify such person. The Court agreed to a short adjournment of the hearing and confirmed it would be held in person at the Facility. With the Court, petitioner's counsel and respondent's counsel all consulting their calendars, the adjourned date for the in-person hearing was scheduled for January 10, 2025 at 10:00 a.m., at the Facility. The Court reiterated to petitioner's counsel more than once the importance of their office being present and being prepared to present their case at the adjourned hearing date and received reassurance of both from counsel.

On January 8, 2025, in response to the Court's inquiry of who would be appearing for petitioner's counsel at the hearing, petitioner's counsel communicated to the Court and respondent's counsel that local counsel would be appearing. Petitioner's counsel was asked to identify their local counsel, but that inquiry was not responded to. After the Court closed on Thursday night, with the adjourned hearing date scheduled the next morning, petitioner's counsel emailed the Court Clerk and respondent's counsel, not including the Court, that in fact local counsel would not be appearing and that no one from petitioner counsel's firm would be able to [*3]appear either. When the Court became aware of this after-hours communication, it canceled the hearing scheduled for the next morning and communicated that information to all counsel, the Court Clerk and the Court Reporter, all of whom had substantial drives to the Facility location. Respondent's counsel responded with her request that the matter be dismissed due to petitioner's inability to proceed on the date and time scheduled for the hearing.

Petitioner's counsel was unprepared with their case on not one but two scheduled hearing dates. Despite the petitioner's counsel being unprepared to proceed with the hearing on the original date, the Court and respondent's counsel extended a professional courtesy to convert that original date to a conference, so the expectation by the morning of January 3 was that the hearing would not go forward. That said, the primary purpose of the January 3 conference became determining a rescheduled date for the hearing, confirming it's location, and confirming that petitioner's counsel would be prepared to proceed on the adjourned date. Petitioner's counsel was given the opportunity to consult the firm's calendar and reaffirmed to the Court the firm's ability to attend and go forward with the hearing at the adjourned date. Subsequent communication from petitioner's firm to the Court and respondent's counsel was that local counsel would attend the hearing. The communication received from petitioner's counsel after hours the night before the hearing certainly suggests that even if efforts were undertaken to obtain local counsel, their appearance was in fact not confirmed at the time that the contrary was expressed to the Court.

If petitioner's counsel does not appear and is not ready to proceed at a scheduled hearing date, and respondent's counsel is prepared to proceed, the Judge may determine that a default and dismiss the plaintiff's action. 22NYCRR §202.27(b). While this case was not "called" at 10:00 a.m. on January 10, 2025 at petitioner's Facility, the Court finds that petitioner's counsel's after hours communication on January 9, 2025 that no counsel would appear the next morning for petitioner makes such a formal "call" an unnecessary formality.

In order to avoid the Court's dismissal of this case, the response to the motion to dismiss from petitioner's counsel would need to show both a reasonable excuse for the default and a meritorious original claim. Latha Rest. Corp. v. Tower Ins. Co., 285 AD2d 437, 437 (1st Dept 2001); 126 Henry St. v. Cater, 197 AD3d 598, 600 (2d Dept 2021). The response of petitioner's counsel to this motion does not provide any reasonable excuse for their failure to appear and be ready to proceed. The submission contains information and allegations in support of the merit of the underlying claim, but that is only half of the required showing.

The petition filed in this matter is dismissed, without prejudice. A showing of merit was established with the original filing; the Court would have not signed the order to show cause otherwise. An updated petition will be required to move the case forward.

There are two different sources to which the Court looks to address the appropriate consequence of this dismissal. The first is 22 NYCRR §130-2.1 which provides for discretionary responses by the Court in response to an unexcused default. Those responses include the imposition of reasonable attorney's fees against counsel. Six of the seven factors set forth in 22 NYCRR §130-2.1(b) weigh in favor of imposing the sanction of attorney's fees in this case.

In addition, where a petition for guardianship is dismissed, the Court has discretion to direct the petitioner pay the fee for respondent's counsel. MHL §81.10. Clearly, the award of attorney's fees against petitioner or its counsel is appropriate based on the totality of circumstances in this case.

In furtherance this Decision it is

ORDERED, that the petition filed in this matter on November 25, 2024 is dismissed, without prejudice; and it is further

ORDERED, that Mental Hygiene Legal Service (3rd Dept.) is directed to file an affirmation of legal services performed in connection with this matter to date. The Court will set a reasonable fee for respondent's counsel based on that affirmation; and it is further

ORDERED, that the Court will direct that the reasonable fee it sets for respondent's counsel be paid either by petitioner's counsel, as a sanction pursuant to 22 NYCRR §130-2.21(a), or by petitioner pursuant to MHL §81.10(f), as may be determined between petitioner and their counsel.

This Decision constitutes the Order of the Court.