The Court issued an order to show cause in this matter on November 4, 2024, appointing Mental Hygiene Legal Service (3rd Dept.) as counsel for D. S. and setting the hearing in this matter for December 3, 2024 at 10:00 a.m. at the Otsego County Courthouse.

The Court received a letter from Susan Arden, Esq., of Cowart Dizzia, LLP, counsel for the petitioner, dated November 26, 2024, indicating D.S. was not personally served pursuant to the deadline set in the order to show cause, and with the consent of counsel for D.S., the Court adjourned the hearing to allow for fourteen days service on the Alleged Incapacitated Person ("AIP"), as required by Mental Hygiene Law § 81.07(e)(ii). The hearing was adjourned to December 18, 2024 and made virtual via Microsoft Teams based on the presence of COVID-19 [*2]in the facility, with the consent of Mental Hygiene Legal Service (3rd Dept.), Alicia Rohan, Esq., of counsel.

The hearing convened via Microsoft Teams on December 18, 2024, at which time Ms. Rohan appeared with D. S.; Jennifer Sweeney, Esq., of Cowart Dizzia, LLP, counsel for the petitioner, appeared; David Taylor, Esq., counsel for the Otsego County Department of Social Services, on notice of this proceeding, appeared with caseworker Annasticia Smith; and S. V., D.S.' daughter, appeared. Ms. Rohan requested the file be sealed, which the Court granted. The Court heard testimony from Amanda Morse, director of social work for Cooperstown Center for Rehabilitation and Nursing (the "Facility"). Ms. Morse testified that D.S. was admitted to the Facility on August 20, 2024. She was assessed at admission for cognitive function using the Brief Interview for Mental Status ("BIMS") evaluation and scored 9 out of fifteen, indicating moderate cognitive impairment. Her latest cognitive assessment was reported as taking place on November 27, 2024, but the specific score was not given. Ms. Morse testified D.S. has some insight and judgment and requires assistance with mobility, dressing, and showering. D.S. makes her own medical decisions and has no power of attorney or healthcare proxy in place.

Ms. Sweeney intended to call another witness named Georgia Willsey, from the Facility's business office, but Ms. Willsey was in the hospital and unable to attend the hearing. Ms. Sweeney requested an adjournment of the hearing, to which Ms. Rohan objected. Ms. Rohan indicated D.S. wants to be discharged home and was never given notice of any change in her status from short-term rehabilitation to chronic care. Ms. Morse confirmed her awareness that D.S. wants to be discharged home. The Court encouraged renewal of the discussion regarding discharge planning for D.S. and adjourned the hearing to January 29, 2025.

The Court reconvened the hearing on January 29, 2025 via Microsoft Teams, at which time Ms. Rohan appeared with D.S.; Ms. Sweeney appeared; Mr. Taylor appeared with caseworker Susan St. John; and S.V. appeared. Ms. Sweeney called Georgia Willsey to testify in support of the application. Ms. Willsey is the business office manager at the Facility, in which capacity she submits Medicaid applications and oversees resident billing. The Facility submitted a Medicaid application on D.S.'s behalf. D.S. has no payment source to the Facility and currently owes the Facility approximately $83,000 for the cost of her care and residence.

On cross-examination, Ms. Willsey testified that she asked D.S. in October and November 2024 to sign an authorization to obtain some information necessary to complete the Medicaid application. Ms. Willsey testified D.S. had been deemed unable to sign an authorization. She testified that as long as her BIMS are high enough, she can sign her own paperwork. Ms. Willsey testified November was the last time D.S. was asked to sign an authorization.

Ms. Sweeney recalled Ms. Morse as a witness. Ms. Morse reiterated her prior testimony that D.S.'s cognition was last tested by her at the end of November 2024, but this time stated that D.S. received a score of fifteen out of fifteen on that BIMS test. That score indicates no cognitive impairment and reflects a dramatic improvement from the score she received on the test upon her admission. Ms. Morse expressed her professional opinion that D.S. would be able to sign an authorization, or an advance directive such as a power of attorney or health care proxy. Her testimony was that D.S. had not been asked to sign any authorizations since the Facility became aware she was fully cognizant.

At this point in petitioner's case-in-chief, Ms. Rohan made a motion to dismiss the petition. The Court requested the motion be made in writing and set deadlines for the filing of motion papers and opposition and reserved decision.

On January 30, 2025, Ms. Rohan filed a combined affirmation and memorandum of law in support of her motion to dismiss the petition. On February 6, 2025, Ms. Sweeney filed an affirmation in opposition to the motion to dismiss, supported by two exhibits — a diagnostic report of D.S.' medical conditions and a generic BIMS form. On the same date, Ms. Rohan filed a brief reply letter, asking the Court to disregard the medical information provided by Ms. Sweeney in responding to the motion, as D.S. did not waive and therefore still enjoys her medical privilege for confidentiality. It is Ms. Rohan's understanding that the Facility had D.S. execute advanced directives in the form of a "do not resuscitate" form, between the December and January hearing dates.

Ms. Rohan argues the petitioner failed to identify functional limitations of D.S. that would support a finding of incapacity. She highlights the fact that D.S. was deemed able to comprehend and sign documents, including a DNR directive. She also argues the petitioner presented a case asserting D.S. failed to sign authorizations to proceed with her Medicaid application, but the petitioner's witness testified she had not asked D.S. to sign any authorizations since the Court's convening of the hearing in December 2024, or at any time after petitioner's determination that D.S. is no longer cognitively impaired. Ms. Rohan notes that petitioner's witness testified D.S. scored a fifteen out of fifteen on the most recent BIMS, supporting a conclusion she has no cognitive impairment, and yet petitioner's counsel chose to move forward with the hearing instead of reaching out to counsel or withdrawing the petition. Ms. Rohan asks the Court to dismiss the petition for failure to prove D.S. is incapacitated and needs the appointment of a guardian and asks the Court to direct counsel fees of Mental Hygiene Legal Service (3rd Dept.) be paid by Petitioner pursuant to Mental Hygiene Law Section 81.10(f).

Ms. Rohan also argues Ms. Sweeney's actions and omissions as petitioner's counsel constituted a failure of preparedness that is the equivalent of defaulting in appearing and that her conduct was frivolous, causing harm to D.S.. Ms. Rohan cites the Uniform Rules for the New York State Trial Courts, which in pertinent part indicates:

The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct. 22 NYCRR § 130-1.2.

The Court "in its discretion, may impose financial sanctions or, in addition to or in lieu of imposing sanctions, may award costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, upon any attorney who, without good cause, fails to appear at a time and place scheduled for an action or proceeding to be heard before a designated court." 22 NYCRR § 130-2.1(a). The section contains factors for the court to consider [*3]when assessing the attorney's failure to appear at a scheduled court appearance and the measure of sanctions or costs to be imposed, including but not limited to the explanation provided by the attorney and whether the attorney has failed to appear on prior occasions in the same action. 22 NYCRR § 130-2.1(b).

In opposition to the motion, an affirmation was completed by Suzan Arden, Esq., an attorney also associated with the law firm of Cowart Dizzia, petitioner's counsel. Her affirmation indicates Ms. Arden is "fully familiar with this matter by means of a file maintained by this office." Ms. Arden affirms that the law firm had contact with the Facility on December 10, 2025 regarding D.S.' BIMS score, and that conversation was then conveyed to Ms. Sweeney in preparation for the hearing. She claims the law firm had contact with the Facility regarding D.S. on seven occasions between December 18, 2024 and January 29, 2025. Ms. Sweeney's conduct, she argues, was not undertaken to delay or prolong this case or harass or injure D.S..

Ms. Arden argues that petitioner should be allowed to withdraw the petition. She submits that D.S. was not presented with authorizations to sign because the Facility had not determined she had the capacity to sign them. She argues a BIMS score alone is not determinative of cognitive ability. Ms. Arden contends that a DNR was ever executed by D.S. and that she remains "full code." She argues the Facility is on the "front line" when it comes to identifying whether a resident needs a guardian, and the Facility has a duty to take appropriate action when the resident appears to need a guardian.

The Court is disregarding Attachment A to Ms. Arden's affirmation, and any arguments advanced based on this document or the information it contains, as it is a diagnosis report containing privileged medical information, and Ms. Rohan has confirmed she objects to the Court's consideration of such confidential information. In re Rosa B.-S., 1 AD3d 355, 356 (2d Dept 2003) ("Although a guardianship proceeding places the alleged incapacitated person's medical and mental condition in controversy, he or she does not waive the doctor-patient privilege unless he or she has affirmatively placed his or her medical condition in issue.")

Petitioner has admittedly not met its burden to prove by clear and convincing evidence that D. S. is incapacitated and requiring the assistance of a guardian to address any personal or financial affairs. MHL § 81.02(a). Petitioner is now requesting to withdraw the petition, after the hearing was convened not once, but twice, with petitioner having full opportunity to present evidence in support of the petition it filed.

The uncontroverted testimony is that more than two weeks before the hearing was initially convened on December 18, 2024, D.S. scored a fifteen out of fifteen on the BIMS test, indicating no cognitive impairment. Petitioner's witness (Ms. Sill's social worker at the Facility) testified that with such a BIMS score D.S. could sign her own authorizations to assist in processing her Medicaid application. There was no other evidence put forth approaching the required clear and convincing standard that D.S. is suffering limitations that would impair her ability to meet her own needs, or that the appointment of a guardian is necessary to meet any unmet need of D.S.. Id. The petition is denied and dismissed with prejudice.

Because this petition is denied, any arguments made pertaining to the withdrawal of the petition are rendered moot, and therefore consideration of Matter of Laurence H (Madeline H) 51 Misc 3d 834 (Sup Ct, Nassau County 2016), cited by both parties, is theoretically unnecessary. But the Court wishes to make clear that if this petition were not denied, and the petitioner [*4]allowed to withdraw it, the Court would adopt the position set forth in Laurence that withdrawal in this case is equivalent to dismissal, supporting the allocation of some or all the fees of counsel for the AIP to petitioner. Id.; Matter of Bender (I.C.), 85 Misc 3d 1205(A) (Sup Ct, Delaware County 2025).

The Court will also address respondent's argument that the actions of petitioner's counsel support the alternate relief of a procedural default and the resultant consequences. 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 Court may determine that a default and dismiss the plaintiff's action. 22NYCRR §202.27(b). Ms. Rohan argues, and the Court agrees, that the conduct of petitioner's counsel in the presentation of this case is tantamount to a default. Petitioner was aware of D.S. intact cognition, as evidenced by her perfect BIMS score, before the scheduled hearing on December 18, 2024. In addition, counsel called a witness at that hearing who was known by petitioner to be hospitalized and unable to attend due to a medical emergency. Appearing counsel was evidently uninformed about these facts, which both obviated the need to move forward and made the ability to do so impossible in advance of the initial hearing, and failed to communicate them.

When the hearing reconvened on January 29, 2025, more than a month later, D.S.'s intact cognition had still not been disclosed, and petitioner's appearing counsel admitted to not having any contact with the Facility between the two hearing dates. The failure to disclose the changed circumstances or make any effort to address the alleged limitation is made worse by the affirmation by petitioner's consel that there were multiple communications between counsel and petitioner. If the law firm had contact with the Facility between the two hearing dates, as affirmed in the papers submitted in response to this motion, then the failure to respond to D.S.'s most recent BIMS score, regained capacity, and ability to execute her own authorizations for processing her Medicaid application, and to communicate that information to the appearing counsel, is very troubling at best.

It is clear the petitioner and its counsel took no affirmative action between the filing of the petition and the final hearing date, to try to obviate the need for a guardianship hearing, despite D.S. clearly regaining some or all capacity in that period. The Court agrees with Ms. Rohan's assessment that the filing of a petition against D.S., her having to meet with counsel, and appear for multiple hearings is at least a serious imposition on her, and accepts as credible Ms. Rohan's statement that it had an upsetting effect on D.S. Despite petitioner's counsel's protestation that the Facility is "here to help D.S." and "this is not a case against her," as she stated in the January 29, 2025 hearing, the Court must remind petitioner and its counsel that an Article 81 proceeding is adversarial in nature and contemplates a serious imposition on an alleged incapacitated person's liberties and rights. Petitioner and/or its counsel being either unprepared or uninformed about its own case, or failing to respond appropriately to a clear and known change in circumstances is wholly unacceptable from the Court's perspective, warranting the imposition of costs and sanctions. Matter of Bender (I.C.), supra.

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 [*5]counsel to this motion does not provide any reasonable excuse for their failure to be prepared with the underlying facts of the case and proceeding accordingly before the initial hearing, let alone the January reconvening of the hearing, with more than a month's time between the two hearing dates to assess the situation and make informed decisions, including withdrawal of a petition that is no longer necessary to achieve the original result sought by the Facility.

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. 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 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(f). Clearly, the award of attorney's fees against petitioner or its counsel is appropriate based on the totality of circumstances in this case. See also, Bender (I.C.), supra.

In furtherance this Decision it is

ORDERED, that the petition filed in this matter on October 31, 2024 is dismissed, with 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 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.