Matter of Anonymous A (Anonymous B)

Supreme Court, Nassau County

Decided on May 8, 2026

Index No. 850197/2026

Gary F. Knobel, J.

Papers Considered:

Documents (NYSCEF Doc. NO. 23-35, 63, 90-3).1

Cross-petitioner Anonymous F ("F") moves, in this proceeding pursuant to Article 81 of the Mental Hygiene Law, for an order granting depositions and other discovery on the ground that the discovery requested is "material and necessary" to defend the allegations asserted against him by the petitioner, Anonymous A ("A"), his brother, which contend inter alia F should not be appointed the guardian for his father, Anonymous B, an alleged incapacitated person ("AIP")

There is no statutory authority pursuant to Article 81 of the Mental Hygiene Law, or a reported appellate guardianship decision under that statute, which permits a cross-petitioner to conduct depositions and be granted extensive document discovery from the petitioner prior to a contested trial on the core prejudgment issues of whether a guardian should be appointed for an incapacitated person and who the guardian should be for that individual if there is a finding of incapacity.

The acrimonious Article 81 proceeding at bar is an intrafamily feud between brothers as to who should be the guardian for their parents and ultimately control assets worth billions of [*2]dollars. At the time of the commencement of this proceeding^FN1 by petitioner son A for the appointment of a guardian for his father, Anonymous B (and the related proceeding for the appointment of a guardian for his mother, Anonymous D), there were four Nassau County Family Court proceedings between petitioner A and cross-petitioner F, a misdemeanor assault case based upon a complaint by petitioner A against cross-petitioner F, and a Federal action commenced by cross-petitioner F, as "attorney in fact" for Anonymous B, against petitioner A. Two cross-petitions have been subsequently filed by sons E and Anonymous F for the appointment of a guardian for their parents. All six petitions, across both cases, in this proceeding by the sons/brothers contend inter alia that their parents are either incapacitated or exhibit diminished capacity.

In his overbroad motion at bar pursuant to CPLR 408, cross-petitioner son/brother F seeks an order granting the disclosure of bank records, emails and the depositions of the petitioner and his counsel, a private investigator and others.

"In a special proceeding, such as the guardianship proceeding at bar, disclosure is available only by leave of the court in view of the need for a speedy adjudication, since permitting discovery could have the effect of delaying the proceeding" (Matter of Nunziata (Nancy K.), 72 Misc 3d 469, 475, 148 N.Y.S.3d 841 [Sup Ct, Nassau County, Knobel, J.], citing Matter of Suit-Kote Corp. v Rivera, 137 AD3d 1361, 26 N.Y.S.3d 642 [3d Dept 2016]; CPLR 408; Siegel & Connors, New York Practice § 555 at 1064-1065 [6th ed 2018]; see also Matter of Giuliana M. (DeCarolis), 220 AD3d 864, 866, 199 N.Y.S.3d 98 [2d Dept 2023] ["discovery tends to prolong a case, and therefore is inconsistent with the summary nature of a special proceeding"]" (Matter of Farley (Doe), 84 Misc 3d 667, 671 [Sup Ct Monroe Cty, Ciaccio, J.]. Consequently, prejudgment discovery in a guardianship proceeding should be granted only where it has been sufficiently demonstrated that there is a need for that relief (see Matter of Giuliana M. (DeCarolis), 220 AD3d 864, 866-867, 199 N.Y.S.3d 98 [2d Dept 2023]). "Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary,^FN2 whether the request is carefully tailored to [*3]obtain the necessary information and whether undue delay will result from the request" (Matter of Suit-Kote Corp. v Rivera (see Matter of Suit-Kote Corp. v Rivera, 137 AD3d 1361, at 1365 [citations omitted]), 26 NYS3d 642 [3d Dept 2016].

Discovery is required to be conducted in guardianship cases expeditiously by a court-appointed court evaluator (see Mental Hygiene Law § 81.09 [a]), who serves a very unique and independent function. There is no other area of substantive New York civil law or procedure which requires discovery to be conducted in this manner. Not only have superpowers been conferred upon the evaluator pursuant to Mental Hygiene Law § 81.09 [c], the evaluator is permitted, as part of their wide-ranging investigation, to conduct hearsay discovery via unsworn oral statements as well as any other documents and records which have not been authenticated. Thus, the report compiled by the evaluator for the court is based upon hearsay in direct contravention of the evidentiary standards of proof required in civil trial in the Supreme Court. This is due in part to the statutory mandate in Mental Hygiene Law § 81.07(b)(1) that the report and testimony be heard by the court 28 days from the date of the signed order to show cause.^FN3 The public policy of an accelerated adjudication of the issue of whether a guardian should be appointed for the alleged incapacitated person is a legislative acknowledgment that "[g]uardianship proceedings [are] a drastic intervention in a person's liberty " (Matter of Nima B.R. (Rae -Garwood), 233 AD3d 879, 224 NYS3d 448 [2nd Dept. 2024]). Consequently, it is imperative for the court to determine the guardianship proceeding without unnecessary delay.

Turning then to the motion at bar, Anonymous F has not sufficiently demonstrated why the discovery requested is necessary to be disclosed at this juncture in this proceeding, prior to a determination of the issue of capacity, or how it is related to that issue. In addition, many of the requested documents appear to be protected from disclosure as attorney work product and attorney-client privilege. Furthermore, if this Court grants the depositions requested, it would delay this proceeding. Instead the court evaluator can expeditiously obtain relevant documents, interview witnesses, investigate transactions, and make requests to the Court in furtherance of her investigation.

Accordingly, it is

ORDERED that cross-petitioner Anonymous F's motion pursuant to CPLR 408 for an order permitting his attorney to conduct discovery is denied; and it is further

ORDERED, in view of the financial complexity of this case, that the guardianship trial shall be separated into separate phases:

(1) Phase 1 will be a joint trial on the issues of whether Anonymous D (index # 850198/2026) and Anonymous B are presently in need of the appointment of a guardian for their personal needs and/or property management;

(2) Phase 2 will be a joint trial on the issues of whether Anonymous D and Anonymous B had the capacity to execute a power of attorney and related documents on April 3, 2025;

(3) Phase 3 will be a joint trial on the issues of whether undue influence was exerted over Anonymous D and/or Anonymous B in executing the subject documents on April 3, 2025; and

(4) Phase 4, if necessary, will be a joint trial on the issue of who should be the guardian or guardians for Anonymous D and/or Anonymous B; and it is further

ORDERED that the first and second trial phases shall commence on June 15, 2026, at 9:30 am and continue daily through June 18, 2026.

The foregoing constitutes the decision and order of this Court.

ENTER

DATED: May 8, 2026

HON. GARY F. KNOBEL, J.S.C.