Papers Considered:

The post-judgment motion by the court evaluator, Janis A. Parazzelli, Esq., for an order adjudging the co-guardians in contempt of this Court's order and judgment dated December 6, 2022 (Knobel, J.), on the ground that the co-guardians failed to pay her court-ordered fee, and the hearing on the April 23, 2025, Initial Report of the court-appointed referee, James McGahan Esq., are consolidated for disposition and granted to the extent indicated below.

This Court, after reviewing the Initial Report, conducted a hearing on June 16, 2025, to inquire as to whether the approximately $114,000.00 in the bank accounts of Sam Ferker, husband of Fira Ferker, the deceased incapacitated person, should have been distributed to Fira Ferker upon the passing of her husband, which occurred five months prior to Fira Ferker's death.

This guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law was commenced in July of 2022 by petitioners Steven and Alexander Ferker, who sought to be appointed co-guardians for their mother, Fira Ferker. The Court appointed attorney Janis Parazzelli, Esq. as court evaluator, and Lawrence Schaffer, Esq. as counsel on behalf of Fira Ferker. The testimony adduced at the hearing indicated that Fira's functional limitations were possibly caused by medical malpractice and negligence, and that the significant assets of Fira and her husband Sam (e.g. the marital residence and a liquor business) had been transferred to their sons several years prior to the commencement of the guardianship proceeding. This Court then orally adjudicated Fira to be an incapacitated person pursuant to Mental Hygiene Law § 81.02.

On December 6, 2022, this Court (Knobel, J.) signed an Order and Judgment appointing petitioners Steven Ferker and Alexander Ferker as co-guardians for the personal needs and property management of their mother Fira Ferker, and awarded petitioners' attorneys the sum of $11, 727.50 as counsel fees. The Court also awarded Janis A. Parazzelli, Esq. $12,950.00, and Lawrence Schaffer, Esq. $4,995.50, for the reasonable value of the services they provided in the proceeding; the Court significantly reduced the award sought by Ms. Parazzelli. Virginia Belling, R.N., who was appointed as a Geriatric Care Manager to assess Fira and where she should reside, was awarded $997.50 for her services.

The court appointees have yet to be paid by the co-guardians.

Sam Ferker died intestate on March 2, 2023.

Fira Ferker passed away on August 4, 2023.

No efforts were made by co-guardian Steven Ferker after Sam's passing, and before Fira's death, to protect Fira's possible financial interests in Sam's estate. Steven filed a petition and an amended petition in Nassau County Surrogate Court in November 2023 to be appointed the administrator of Sam's estate; a Waiver of Spouse Estate document dated November 15, 2023, was filed on November 17, 2023. Steven Ferker was eventually appointed as administrator of Sam Ferker's estate by the Nassau County Surrogate in an order dated April 5, 2024 (Reilly, J.).

In May 2023, the court evaluator filed an order to show cause in this Court, returnable in July 2023, seeking the removal of the co-guardians and adjudicating them in contempt of this Court's December 6, 2022, order for their failure to pay her court-awarded fee.

In an order dated July 21, 2023 (Knobel, J.) this Court adjourned the motion to August 10, 2023, and directed the co-guardians to respond to the motion by August 4, 2023. The co-guardians opposed the motion on the ground that there was no money in the guardianship estate because Fira Ferker did not have any assets.

However, Fira Ferker passed away on August 4, 2023, before the motion was submitted to the Court. However, the death of Fira Firker effectively stayed the motion as to the removal of the guardians, and required the co-guardians to wind-up the guardianship estate by filing a final account, to be reviewed and possibly approved by the court examiner and the Court; in essence the motion was held in abeyance pending the submission of the final account (see generally Matter of Shannon, 25 NY3d 345 [2015]).

The co-guardians eventually executed a final account on July 10, 2024.

On November 18, 2024 (Knobel, J.) this Court appointed court examiner James McGahan, Esq., as a referee to review the final account and report thereon; his initial report was filed on April 23, 2025.

The December 6, 2022, order and judgment permitted the co-guardians to "renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer . . . subject to prior Court approval" (NYSCEF Doc. No. 18 [emphasis added]). Although the co-guardians never made such an application to this Court, they renounced in November 2023, all of Fira Ferker's rights to letters of administration in November 2023 and represented to the Surrogate Court that Fira Ferker did not have an estate and there not an estate administration.

During the hearing on June 16, 2025, co-guardian Steven Ferker testified that the money from Sam Ferker's estate was used to pay the burial expenses related to Fira and her husband, and the remainder was applied to pay mold remediation in the martial residence home which was occupied by Sam prior to his death.^[FN1] The marital residence had been deeded to co-guardians Steven and Alexander Ferker on November 11, 2005, many years prior to the inception on the Guardianship. Guardian Steve Ferker represented, in sum and substance, that the home owned by him and his brother since 2005, was still insured under their parents, the IP and her husband, and that no insurance claim was made to assist in the fees accrued for the mold remediation. All of the funds came from Sam Ferker's estate without any portion withheld for the distribution to Fira Ferker's estate. The mold remediation occurred in April 2024 after the co-guardians received the funds from Sam Ferker's estate.

Mental Hygiene Law Article 81 requires that a guardian shall exercise the utmost care and diligence, exhibit the utmost degree of trust, loyalty and fidelity, and "use the property and financial resources and income available therefrom to maintain and support the incapacitated person, and to maintain and support those persons dependent upon the incapacitated person" (Mental Hygiene Law § 81.20). It is within the discretion of the guardianship court to determine compensation due to a fiduciary of an incapacitated person and the appropriateness of surcharging a fiduciary (Matter of Joshua H. v. Grace N., 80 AD3d 698, 699 [2d Dep't 2011] citing Mental Hygiene Law §81.28[b]; see generally Matter of Irene A., 214 AD3d 790 [2d Dep't [*2]2023]; Matter of Rose V. (Scali), 171 AD3d, 1077 [2nd Dept. 2019]).

Although the Court is sensitive to the emotional trauma suffered by lay guardians in having to experience the physical and mental debilitation or death of a parent or child with and grieving families, here however, the explanations provided by the co-guardians in their written opposition and testimony do not justify or remedy the violation of their fiduciary duty to their mother, Fira Ferker. In the intervening five months between Sam Ferker and Fira Ferker's passing, there was no effort to fund her guardian estate even though Fira was at least entitled to her elective share (approximately $50,000.00) of her husband's estate, and one half of the balance of any estate belonging to her husband. Instead of marshalling those assets on her behalf, and discharging their duties as co-guardians, Sam Ferker's funds were transferred into the accounts of the co-guardians and spent by the co-guardians' for their personal purposes; not paid to the court appointees, and preserved or spent for Fira's benefit. The monies which the co-guardians paid for mold remediation was not to be paid from Fira's guardianship estate. Moreover, subsequent to Fira's passing, the co-guardians also violated their fiduciary duty to Fira by affirmatively executing spousal waivers in the Sam Ferker Surrogate Court proceeding without the permission of this Court.

The Court notes that Steven Ferker testified at the June 16 hearing that apparently there is a Medicaid claim for $135,101.70 for services provided to Fira Ferker.^[FN2]

Based on the foregoing, the Court has no choice but to find that the co-guardians breached their fiduciary duty to Fira Ferker and must be held in contempt of this Court's December 6, 2022, order and surcharged for the awarded fees.

Accordingly, it is hereby

ORDERED, that co-guardians Steven and Alexander Ferker are surcharged $12,950.00 for the monies owed, and that they have refused to pay, to Janis Parazzelli, Esq.; and it is further

ORDERED, that co-guardians Steven and Alexander Ferker are surcharged $4,995.50 for the monies owed, and that they have refused to pay, to Lawrence Schaffer, Esq.; and it is further

ORDERED, that co-guardians Steven and Alexander Ferker are surcharged $997.50 for the monies owed to the geriatric care manager, Virginia Bellin, R.N., for the professional services she provided but has not been paid for; and it is further

ORDERED that co-guardians Steven Ferker and Alexander Ferker are held in contempt of Court for their failure to abide by this Court's December 6, 2022, order (Knobel, J.) and pay the court appointees the monies owed to them for the professional services they rendered in this proceeding, and it is further

ORDERED that co-guardians Steven Ferker and Alexander Ferker may purge themselves of this contempt citation by paying the fees awarded to Janis Parazzelli, Esq., Lawrence Schaffer, Esq., and Virginia Belling, R.N., on or before July 21, 2025, and it is further

ORDERED that, upon Steven Ferker and Alexander Ferker's failure to timely pay Janis Parazelli, Esq., Lawrence Schaffer, Esq., and Virginia Belling, R.N., these Court appointees are permitted to file and enter with the County Clerk's office separate judgements against co-guardians Steven Ferker and Alexander Ferker, together with this order, plus statutory interest at nine per cent from April 5, 2024 (the date letters of administration were issued by the Surrogate [*3]Court), plus costs and disbursements, and it is further

ORDERED, that co-guardians Steven and Alexander Ferker are to provide court examiner James McGahan, Esq., with all documents relating to the Estates of Sam Ferker and Fira Ferker; and it is further

ORDERED, that Court Appointed Referee James McGahan shall state and settle the amended final account of Fira Ferker (deceased), on behalf of co-guardians Steven and Alexander Ferker based upon the documents received; and it is further

ORDERED, that co-guardians Steven and Alexander Ferker shall pay the fee awarded to James McGahan, Esq. for the services provided in stating and settling the amended final account, and it is further

ORDERED that Janis Parazelli and Lawrence Schaffer shall immediately file and serve a copy of this order with notice of entry upon co-guardians Steven Ferker and Alexander Ferker, and it is further

The foregoing constitutes the decision and order of this Court.