In this highly contested Mental Hygiene Law Article 81 proceeding, the petitioner, RS, alleges that his mother, VS, is an incapacitated person requiring the appointment of a Personal Needs and Property Management Guardian.

The Alleged Incapacitated Party (hereinafter AIP) has two other children, GS and DS, who have each filed applications to intervene in this matter. Additionally, three applications to [*2]disqualify counsel have been filed: 1) Kyle Stefurak, Esq., Court-appointed counsel to VS, seeks to disqualify Jeffrey Solomon, Esq. as counsel to GS; 2) Jeffrey Solomon, Esq., as counsel to GS, seeks to disqualify Kyle Stefurak, Esq. as counsel to VS; and 3) Jeffrey Solomon, Esq., as counsel GS, seeks to disqualify David Smith, Esq. as counsel to DS. Finally, Kyle Stefurak, Esq. seeks sanctions against Jeffrey Solomon, Esq. for frivolous conduct.

Various responsive papers and exhibits were submitted in connection with the application to be granted third party status to intervene, to disqualify counsel and for imposition of sanctions. Additionally, all counsel were given an opportunity to orally argue the consolidated motions on August 19, 2025.

This court will first address the applications for intervention.

1) Intervention application by Jeffrey Solomon, Esq. on behalf of GS

GS seeks, by application dated July 21, 2025 to intervene in the above-captioned Article 81 guardianship proceeding. Intervention is sought pursuant to Civil Practice Law and Rules (hereafter "CPLR") §401, §1012 and §1013. Under the CPLR, an application for intervention must comply with CPLR §1014, entitled "Proposed intervention pleading," which states in pertinent part:

"A motion to intervene shall be accompanied by a proposed pleading setting forth the claim or defense for which intervention is sought."

The Court retains discretion to permit intervention without a formal pleading when the papers otherwise clearly establish the party's position in a sworn affidavit, and a more formal pleading is filed soon thereafter. See Ryder v. Travelers Ins. Co., 37 AD2d 797, 324 N.Y.S.2d 804, 806 (App. Div. 4th Dept. 1971).

This Court has reviewed all documents filed in support of GS's application to intervene and notes that there is no proposed cross-petition or petition included in her motion. However, her sworn affidavit contains sufficient facts to support an application to intervene as a third party. Some of the paragraphs of sworn affidavits elucidate her position in this matter sufficiently. For instance, paragraph #26 of document #131, the "GS Affirmation in Reply and in Further Support of GS Motion to Intervene and in Opposition to RS Cross-Motion for Temporary Guardian," states:

"26. Your affirmant stands prepared to prove that I am the only one of the three siblings that was consistently proactive in trying to locate and provide the best care for ["VS"] to the limited extent that I was able to, due to ["DS"]'s draconian controls over ["VS"]. Your affirmant is prepared to offer proof and testimony concerning multiple times where ["VS"] actively sought your affirmant's assistance and help when ["DS"] was, as usual derelict in his responsibilities as health care proxy."

Additionally, paragraph #4 of document #55, the "Affirmation in Support of Motion to Intervene and Related Relief" states:

"4. This is a complex matter. Movant and counsel need time to review the prior filings in this case in order to properly and meaningfully participate in this proceeding, including but not limited to filing objections to the Petition and cross-moving to be appointed [VS]'s Guardian."

Based upon sworn statements of GS, it is clear that there are common questions of law or fact in GS's application to intervene and the underlying Article 81 proceeding. This Court has also considered whether the intervention would unduly delay the determination of the action or [*3]prejudice the substantial rights of any party and determines that intervention is appropriate in this matter. Any slight delay in the adjudication of this proceeding is counter-balanced by the need for all relevant facts to be submitted to the Court prior to a judicial determination of the significant constitutional rights of the AIP.

Thus, while recognizing the technical defect under CPLR §1014 of a failure to submit a pleading, the Court determines under the unique facts and circumstances of this case and in the interest of justice, that it is appropriate to grant GS permission to intervene as a third party subject to the requirement that she file a formal pleading within 30 days of the signing of this order. GS's application to intervene in this matter as a cross-petitioner is therefore conditionally GRANTED.

2) Intervention application by David Smith, Esq. on behalf of DS

DS seeks, by application dated July 29, 2025 (documents 64-67), to intervene in the Article 81 guardianship proceeding. Intervention is sought pursuant to CPLR §401, §1012, §1013, and §1014.

This Court has reviewed all documents filed in support of the application to intervene and has analyzed the proposed verified cross-petition. DS's petition and the Article 81 action contain common questions of law or fact. This Court has also considered whether the intervention would unduly delay the determination of the action or prejudice the substantial rights of any party and determines that intervention is appropriate in this matter. Any slight delay in the adjudication of the Article 81 application is outweighed by the importance of the Court acquiring knowledge of all relevant facts and circumstances prior to rendering a decision. Therefore, DS's application to intervene in this matter as a cross-petitioner is GRANTED.

This court will next address the applications for disqualification.

1) Disqualification application of attorney Jeffrey Solomon, Esq. initiated by Kyle Stefurak, Esq.

Kyle Stefurak, Esq.'s application to disqualify Jeffrey Solomon, Esq. as counsel to GS is based upon a purported violation of rules 1.9 and 1.7 of the New York Rules of Professional Conduct (hereafter "NYRPC").

Rule 1.9 of the NYRPC, entitled "Duties to Former Clients" states, in pertinent part:

"(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Thus, Rule 1.9(a) is violated when: 1) the subject lawyer formerly represented the subject client, 2) the subject lawyer now represents a different client, 3) the current matter is the same or substantially related to the prior matter involving the subject client, 4) current client's interests are materially adverse to the interests of the subject client and 5) the subject client has not given informed consent confirmed in writing to the conflict.

With respect to element 1, documentation from Nassau County Supreme Court indicates that a declaratory judgment was filed with the court, certifying that in 2007, Mr. Solomon represented SS and VS, "as Trustees of the [S] Living Trust." Mr. Solomon acknowledges that he represented VS in this matter but argues that it should not result in disqualification because he [*4]represented her nearly 20 years ago, and he maintains that that he only represented her as a trustee, which is distinct from representing her as an individual. He asserts, without citation:

"Your affirmant was representing the [S] Living Trust in the 2006 Case. As a matter of law your affirmant had no choice except to name ["SS"] and ["VS"] as named plaintiffs in a representative capacity. Also as a matter of law, ["VS"] AIP is an entirely different (legal) person from ["VS"], Trustee, so that Rules 1.7 and 1.9 are not relevant."

The fact remains that Mr. Solomon's named client was VS under Index #0002919/06 in Nassau County Supreme Court, and she is the Alleged Incapacitated Person in this Article 81 proceeding. Therefore, the first element of Rule 1.9 is satisfied.

A Notice of Appearance filed by Jeffrey Solomon, Esq. on May 27, 2025, indicates that he now represents GS against VS, his former client. The Court finds that element 2 is satisfied.

Jeffrey Solomon, Esq., on behalf of GS, initiated proceedings in May 2025 in Nassau County Supreme Court under Article 77 of the CPLR to determine who controls a Trust, which was the subject of his previous representation of VS. This court finds that it is established that his current client's litigation is substantially related to the work Jeffrey Solomon, Esq. performed for VS.

Further, GS's affirmation in support of the motion to intervene filed on July 22, 2025 indicates that Jeffrey Solomon, Esq. and his client "need time to review the prior filings in this case in order to properly and meaningfully participate in this proceeding, including but not limited to filing objections to the Petition and cross-moving to be appointed ["VS"]'s Guardian." VS's counsel has represented to this court that VS vehemently opposes the relief sought by Jeffrey Solomon, Esq.'s current client. This court finds that it is established that Jeffrey Solomon, Esq.'s current client's interests are materially adverse to the interest of VS. Therefore, the Court finds that the requirements of the 4th element are satisfied.

With respect to element 5, it is undisputed that informed consent has NOT been offered nor obtained from VS to the potential conflict.

Wherefore, it is clear to this court that continued representation by Jeffrey Solomon, Esq. of GS in this matter would violate the duty owed to former client VS pursuant to rule 1.9(a). Disqualification is required on this basis. Jeffrey Solomon, Esq. is hereby disqualified from continuing to represent GS in this matter. Kyle Stefurak, Esq.'s application to disqualify Jeffrey Solomon, Esq. in this matter based upon a violation of Rule 1.9(a) is GRANTED.

In addition to the Rule 1.9 grounds for disqualification, counsel cites Rule 1.7 of the NYRPC, entitled "Conflict of Interest: Current Clients" states, in pertinent part:

"(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:

(1) the representation will involve the lawyer in representing differing interests; or

(2) there is a significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against [*5]another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing."

Mr. Stefurak notes in his application that there are several areas that create significant risk that Mr. Solomon's professional judgment on behalf of his client will be adversely affected by Mr. Solomon's own financial, business, property or other personal interests. See Rule 1.7(a)(2). In particular, they include:

A) Personal interest: Mr. Solomon is related by marriage to his client — Mr. Solomon is married to GS.

B) Personal interest: Mr. Solomon is related by marriage to the Respondent, — VS, who is his mother-in-law.

C) Personal interest: Mr. Solomon is related by marriage to the Petitioner, RS, who is his brother—in-law.

D) Personal interest: Mr. Solomon is related by marriage to the proposed intervenor, DS, who is his brother-in-law.

E) Financial interest: Mr. Solomon potentially stands to gain financially if his client obtains a financial benefit from the proceeding.

F) Financial interest: Mr. Solomon potentially stands to lose financially if another party were to obtain a financial benefit from the proceeding (potential loss of inheritance to his spouse).

As discussed above, Mr. Solomon did not provide a cross-petition or formal pleading which would more clearly elucidate the relief his client seeks, and thus it is not entirely clear what particular benefits he or his client would receive (from which he would share as spouse) but the opaqueness of that relief sought should not inure to his benefit.

Mr. Solomon did not dispute any of these allegations in his responsive papers, though at oral argument he disputed that these relationships would impact his ability to maintain his professional judgment on behalf of his client. However, this Court notes that Mr. Solomon used vituperative language in his written submissions in this case, which calls into question his ability to maintain a professional demeanor and judgment given the charged emotional relationships and interests in this case.

Additionally, as was revealed in the oral argument of this matter, because of his extensive family relationships and personal knowledge of the facts and circumstances of this case, Mr. Solomon is a likely fact witness in the Article 81 proceeding. Therefore, the attorney-witness conflict is present in this proceeding.

Finally, this Court notes that the conflict rule is violated, not only when an actual conflict is established, but merely when "a reasonable lawyer would conclude that there is a significant risk" that the conflict would impair representation (See 1.7(a)(2)). Moreover, the conflict is not overcome merely by Mr. Solomon believing that he can "provide competent and diligent representation to each affected client," but rather only when such belief is reasonable (See 1.7(b)(1)). In this case, based upon the plethora of charged personal relationships, potential personal and financial benefits to Mr. Solomon via his relationship with his wife/current-client, and the potential that his personal relationship with the parties and respondent may require his testimony, this Court finds that "a reasonable lawyer would conclude that" "there is a significant risk" that the conflict would impair representation (See 1.7(a)(2)), and that a belief that he can provide competent and diligent representation to each affected client in spite of the charged [*6]personal, financial, and professional relationships is unreasonable. Thus, Kyle Stefurak, Esq.'s application to disqualify Jeffrey Solomon, Esq. in this matter based upon a potential violation of Rule 1.7 is GRANTED.

As a result, the Court is granting a 30-day adjournment to enable GS to obtain new counsel in this matter.

2) Disqualification application of attorney David Smith, Esq. initiated by Jeffrey Solomon, Esq.

The application to disqualify David Smith, Esq. as counsel to DS is based upon a purported violation of Rule 1.18 of the NYRPC.

Rule 1.18 of the NYRPC, entitled "Duties to Prospective Clients," states:

(a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;

(ii) the firm implements effective screening procedures to prevent the flow of information about the matter between the disqualified lawyer and the others in the firm;

(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and (iv) written notice is promptly given to the prospective client; and

(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.

(e) A person is not a prospective client within the meaning of paragraph (a) if the person:

(1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or

(2) communicates with a lawyer for the purpose of disqualifying the lawyer from [*7]handling a materially adverse representation on the same or a substantially related matter."

The mere fact that a consultation took place between a lawyer and a prospective client does not end the necessary inquiry under Rule 1.18. There are circumstances when a consultation takes place, but disqualification is not required: ie. when the lawyer has not "received information from the prospective client that could be significantly harmful to that person in the matter" (See Rule 1.18(c)). This "disqualifying information" as defined in paragraph (c) is a pre-requisite to disqualification under Rule 1.18(d).

Upon review of the submissions in support of the application to disqualify Mr. Smith, there is no indication that information was conveyed that "could be significantly harmful to that person" under Rule 1.18. Even the affidavit by the attorney allegedly involved in the consultation with the Smith firm fails to indicate that any harmful confidential material was conveyed. To the contrary, the submission of Mr. Solomon relies upon mere speculation.

Jeffrey Solomon, Esq.'s application to disqualify David Smith, Esq. in this matter is DENIED.

3) Disqualification application of attorney Kyle Stefurak, Esq. initiated by Jeffrey Solomon, Esq.

The application to disqualify Court-Appointed Counsel Kyle Stefurak, Esq. as counsel to VS was articulated in papers as based upon a purported violation of Rules 1.3 and 1.7 of the NYRPC.

Rule 1.3 of the NYRPC, entitled "Diligence," states:

"(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.

(c) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but the lawyer may withdraw as permitted under these Rules."

In support of the application to disqualify Court-appointed Counsel Kyle Stefurak, Esq., who was selected for representation from the Part 36 Fiduciary list, Mr. Solomon presented a concededly circumstantial case, without any direct evidence of violation of Rule 1.3 and 1.7. His affirmation repeatedly concedes the lack of any actual direct proof of the serious allegations he makes:

"31. Such admittedly serious allegations are not made lightly, are difficult to prove conclusively, but your affirmant believes there is credible circumstantial evidence to support the position that Mr. Stefurak is not working for the undivided best interests of ["VS"]." [ . . . ]

"73. Again acknowledging the seriousness of the contentions herein made, and the difficulty in obtaining clear proof, your affirmant respectfully submits that the circumstances stated in this affirmation provide substantial and compelling circumstantial evidence that Mr. Stefurak has either placed himself in a position of dual loyalties, and at a minimum, create the clear appearance of impropriety giving mitigating in favor of disqualifying him as ["VS"]'s counsel in this Proceeding. Wherefore it is respectfully requested that this Court disqualify Kyle Stefurak, Esq. from representing ["VS"] in these proceedings, and grant such other and further relief as is just and proper." (Emphasis added)

In this Court's view, none of the submissions by Mr. Solomon in support of the application to disqualify Mr. Stefurak substantiated any of the serious allegations leveled against Mr. Stefurak. The application to disqualify Mr. Stefurak as counsel to VS is DENIED.

4) Sanctions Application against attorney Jeffrey Solomon, Esq. initiated by Kyle Stefurak, Esq.

Mr. Stefurak has requested the Court consider sanctions against Mr. Solomon for his allegations, on the basis that the application is frivolous and offensive. Under NY Comp. Codes R. & Regs. tit. 22, § 130-1.1, entitled "Costs; Sanctions:"

"The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part."

This Court is troubled by the excessively personal and unprofessional allegations made by movant Solomon regarding a member of the New York State Bar in good standing. Rule 3.3, entitled "Conduct Before a Tribunal," requires, in pertinent part:

"(f) In appearing as a lawyer before a tribunal, a lawyer shall not:

(2) engage in undignified or discourteous conduct;"

Commentary 13 to that Rule expands on the meaning and import of that Rule as follows:

"Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties. A lawyer should not engage in conduct that offends the dignity and decorum of proceedings or that is intended to disrupt the tribunal. While maintaining independence, a lawyer should be respectful and courteous in relations with a judge or hearing officer before whom the lawyer appears. In adversary proceedings, ill feeling may exist between clients, but such ill feeling should not influence a lawyer's conduct, attitude, and demeanor toward opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system."

Many of the allegations contained in the submissions related to this application to disqualify Mr. Stefurak accuse him of unprofessional, biased and even criminal behavior. These allegations appear based on speculation without further factual support. This conduct runs counter to the ethical standards imposed upon attorneys outlined in Rule 3.3 outlined above.

The Court cautions all parties that civility is required when submitting papers to a court. All parties and counsel are directed to review the Standards of Civility, Appendix A to the Disciplinary Rules, before filing another motion with this court. The Court specifically admonished Mr. Solomon to cease and desist any further frivolous or malicious communications regarding counsel in this proceeding. Due to the disqualification of Mr. Solomon and subsequent admonition, the Court declines to impose sanctions upon Mr. Solomon as requested by Mr. Stefurak.

To summarize the above rulings:

1) The application for intervention of GS as Cross-Petitioner is GRANTED, on the [*8]condition that a formal pleading be filed within 30 days of the signing of this order.

2) The application for intervention of DS as Cross-Petitioner is GRANTED.

3) The application for disqualification of Jeffrey Solomon, Esq. as counsel in this matter is GRANTED.

4) The application for disqualification of David Smith, Esq. as counsel in this case is DENIED.

5) The application for disqualification Kyle Stefurak, Esq. as counsel in this case is DENIED.

6) The application for sanctions against Jeffrey Solomon, Esq. is DENIED.

7) The Court orders a 30 day adjournment for GS to obtain new counsel and interpose a proper pleading.

This matter is hereby adjourned until October 16th, 9:30 am for a full day hearing on the Article 81 petition and cross-petitions. The pending motion to dismiss filed by Mr. Smith will be decided in a separate decision.

So-Ordered.