| Matter of Ernestine R. |
| 2009 NY Slip Op 03179 [61 AD3d 874] |
| April 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Ernestine R. John R., Respondent; Anthony LaM.,Respondent and Cross Petitioner-Appellant, et al., Respondents and CrossPetitioners. |
—[*1] Swidler & Messi LLP, New York, N.Y. (Lisa Solomon of counsel), forpetitioner-respondent.
In a proceeding pursuant to Mental Hygiene Law article 81 for the appointment of aguardian for the personal needs and property management of Ernestine R., Anthony LaM.appeals from an order of the Supreme Court, Westchester County (Rosato, J.), entered January14, 2008, as amended February 6, 2008, which granted the petitioner's motion, in effect, for anaward of an attorney's fee pursuant to 22 NYCRR 130-1.1 to the extent of directing him to paythe petitioner's attorneys the total sum of $21,720, and directed him to pay the fees of the courtevaluator in the sum of $4,162.50.
Ordered that on the Court's own motion, the notice of appeal from so much of the orderentered January 14, 2008, as amended February 6, 2008, as directed the appellant to pay the feesof the court evaluator in the sum of $4,162.50, is deemed an application for leave to appeal fromthat portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order entered January 14, 2008, as amended February 6, 2008, is reversed,on the facts and in the exercise of discretion, with costs, and the petitioner's motion, in effect, foran award of an attorney's fee pursuant to 22 NYCRR 130-1.1 for the petitioner's attorneys isdenied.
On April 4, 2001, Ernestine R., suffering from a debilitating and progressively worseningmedical [*2]condition, executed a durable general power ofattorney designating her brother, the appellant, her attorney-in-fact. On or about June 22, 2006,Ernestine R.'s husband, the petitioner, commenced the instant proceeding, seeking to beappointed the guardian for her personal needs and property management. However, in a crosspetition filed on or about September 1, 2006, the appellant and three other members of ErnestineR.'s family (hereinafter collectively the cross petitioners) opposed the petition on the ground thatthe power of attorney rendered the appointment of a guardian unnecessary. Alternatively, thecross petitioners alleged that if the appointment of a guardian was indeed necessary, then theappellant should be appointed the guardian for the property management of Ernestine R.
On or about September 25, 2006, the petitioner mentioned to Steven A. Swidler, one of hisattorneys, that the appellant was once convicted of a felony. Swidler, realizing that under thecircumstances, the appellant was legally disqualified from serving as a guardian for the propertymanagement of an incapacitated person (see 22 NYCRR 36.2 [c] [7]), pointed this out tothe cross petitioners. The cross petitioners, who had been unaware of the impact of theappellant's conviction upon the appellant's ability to serve as a guardian for the propertymanagement of an incapacitated person, never disclosed the conviction to their attorney.
Soon after being advised of the significance of the appellant's conviction, the crosspetitioners, on November 13, 2006, informed the court they were withdrawing the cross petitionand consenting to the petitioner's appointment as guardian. Thus, in a judgment entered January11, 2007, the court, inter alia, "Ordered and adjudged . . . that the cross-petition"was "withdrawn," declared the power of attorney inoperative, and appointed the petitionerguardian for the personal needs and property management of Ernestine R.
Approximately six months later, the petitioner, arguing that the filing of the cross petitionwas "frivolous," moved, in effect, for an award of an attorney's fee pursuant to 22 NYCRR130-1.1 both for Swidler and his other attorney, Allison Guthrie Fischer. In the order appealedfrom, as amended, the court, finding, among other things, that the appellant's "conduct. . . constituted frivolous conduct," granted the motion to the extent of directing theappellant to pay the petitioner's attorneys the total sum of $21,720. In addition, the court directedthe appellant to pay the court-appointed court evaluator the sum of $4,162.50. We reverse.
Attorneys fees, incidents of litigation, cannot be awarded unless authorized by statute, courtrule, or agreement between the parties (see Matter of Hayevsky, 302 AD2d 524, 525[2003]). 22 NYCRR 130-1.1, a court rule intended to limit frivolous and harassing behavior (see Doe v Karpf, 58 AD3d 669[2009]), authorizes a court, in its discretion, to award to any party or attorney in a civil actionreasonable attorneys fees resulting from conduct found to be "frivolous." Among the types ofconduct that will be considered frivolous are those determined to be "completely without meritin law," or "undertaken primarily to delay or prolong the resolution of the litigation, or to harassor maliciously injure another" (22 NYCRR 130-1.1 [c] [1], [2]; see Glenn v Annunziata, 53 AD3d565, 566 [2008]). In making that determination, the court must consider "the circumstancesunder which the conduct took place," and "whether or not the conduct was continued when itslack of legal or factual basis was apparent [or] should have been apparent" (22 NYCRR 130-1.1[c]; see Glenn v Annunziata, 53 AD3d at 566).
Here, in light of, among other things, the appellant's understandable objection to the petitionbased on the power of attorney, his lack of awareness of the impact of his conviction upon hisability to be [*3]appointed a guardian for the propertymanagement of an incapacitated person, and his prompt withdrawal of the cross petition uponbeing advised of that impact, we conclude that the appellant did not engage in any frivolousconduct. Accordingly, the Supreme Court improvidently exercised its discretion in directing himto pay the petitioner's attorney's fee and the court evaluator's fee pursuant to 22 NYCRR 130-1.1as a sanction for frivolous conduct. Furthermore, under the circumstances, the Supreme Courthad no other basis for requiring the appellant to pay those fees (cf. Matter of Hayevsky,302 AD2d at 525).
The appellant's remaining contentions have been rendered academic in light of ourdetermination. Mastro, J.P., Covello, Eng and Leventhal, JJ., concur.