MHL ARTICLE 81 - New York State Unified Court System

Matter of Dorothy N., 61 A.D.3d 871; 876 N.Y.S.2d 879 (2nd Dept. 2009)
Supreme Court did not improvidently exercise its discretion in determining that the petitioners
conduct in commencing and maintaining the particular guardianship proceeding was frivolous within
the meaning of 22 NYCRR 130-1.1(c), thus warranting the imposition of costs.
Matter of Monahan, 2007 N.Y. Misc. LEXIS 6886; 238 NYLJ 68 (Sup. Ct., Nassau Cty)
(Iannucacci, J.)
Where the petition was: (1) false in at least one material fact in that it alleged that the AIP was in
need of 24 hour care when she was already receiving 24 hour care; (2) commenced only to gain a
financial advantage in a pending proceeding in Surrogate’s Court; and, (3) not withdraw by the
petitioner after it had become clear that there was no merit to the allegations causing undue delay
and costs, the court held that the petitioner had engaged in frivolous conduct as defined by 22
NYCRR 130-1.1 and directed the petitioner to pay all counsel fees and the court evaluator fee by a
date certain. The court further held that if said fees were not paid by that date each counsel could
enter a money judgement for the amount awarded without further notice upon an affirmation of noncompliance
and the clerk shall enter judgement accordingly.
rd
Matter of Arnold "O", 226 A.D.2d 866; 640 N.Y.S.2d 355 (3 Dept., 1996) lv. to app. denied,
88 N.Y.2d 810, 649 N.Y.S.2d 377 (1996), related proceeding, 256 A.D.2d 764; 681 N.Y.S.2d
rd 627 (3 Dept., 1998)
Upon dismissal of petition, Supreme Court properly imposed award of counsel fees for frivolous
conduct, pursuant to 22 NYCRR 130-1.1 where petition to remove guardian was filed approximately
six months after entry of prior order which denied petitioners' cross motion to remove guardian.
Petitioners' conclusory allegations of guardian’s misconduct were unsupported by any evidence. It
was clear from record that petitioners disagreed with guardian’s choice of health care facility for IP.
It was equally clear that prior cross motion to remove guardian and instant petition for the same
relief, together with petitioners' threatening and harassing conduct directed at guardian and staff of
health care facility where IP resides, were product of petitioners' frustration and anger.
nd
Matter of Elizebeth R., 228 A.D.2d 445; 643 N.Y.S.2d 224 (2 Dept., 1996)
Petitioner commenced proceeding to have guardian appointed on behalf of her sister, alleging that
AIP was incapable of handling her personal and financial needs due to use of drugs and alcohol.
Court properly dismissed petition and imposed sanctions upon petitioner finding that commencing
and continuing of this proceeding was frivolous pursuant to 22 NYCRR 130-1.1.-see related case,
Matter of Rocco, 161 Misc.2d 760; 615 N.Y.S.2d 260 (Sup. Ct., Suff. Cty., 1994).
Matter of Slifka, Index No. 00757/96, Sup. Ct., Westchester Cty., Pallella, J., 6/6/96, NOR
Court granted AIP’s motion to dismiss petition but denied motion to impose sanctions on petitioner.
Petition was for guardianship over trust to pay for AIP’s inpatient care; however he left hospital
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