MHL ARTICLE 81 - New York State Unified Court System

Matter of Heckl, 44 A.D.3d 110; 840 N.Y.S.2d 516 (4th Dept., 2007)
The Court held that an AIP who refused to be interviewed by the Court Evaluator although
specifically ordered to do so by the court could not be held in contempt for her refusal to speak
because there was no disobedience of a lawful and unequivocal mandate of the court by a party to
the proceeding as required by Judicairy § 753 [A] [3]. The court held that although the AIP was the
subject of the proceeding, she was not a respondent and therefore is not a party to the proceeding.*
Thus, the provisions of Judiciary Law § 753 (A) (3) permitting the court to punish a party for the
disobedience of a lawful mandate did not apply to the AIP and that in any event, even assuming that
the AIP was a party to the proceeding, the lawful mandate of the court ordering that the Court
Evaluator meet with the AIP immediately was directed at the Court Evaluator, not the AIP.
Furthermore, "[c]ivil contempt has as its aim the vindication of a private party to litigation and any
sanction imposed upon the contemptor is designed to compensate the injured private party for the
loss of or interference with the benefits of the mandate" and the Court Evaluator, is not a party to the
proceeding.
* This seems to be an unusual construction of the statute since an AIP is a party for the purpose of
taking an appeal.
S. Annual Reports/Court Examiners
Matter of Albert K. (D’Angelo), 96 AD3d 750: 946 N.Y.S. 2d 186 4262 (2nd Dept. 2012)
The Appellate Division affirmed the trial court’s decision to: (a) impose a surcharge against the
guardian, (b) deny the guardian’s commission and attorney fees, and (c) direct the Guardian to
personally pay the Court Examiner’s fee at an amount in excess if the statutory guidelines set forth
in 22 NYCRR 806.17(c) but reversed the trial’s court decision to deny the Public Administrator’s
application for the guardian to also pay 9% interest on the sums surcharged. The “covert self
dealing” engaged in by this guardian included: the guardian appointing and paying his own wife to
serve as the geriatric care manager, that care manager continuing to provide and manage home health
aides while the IP was in a nursing home without prior court approval, preparing a Will for the IP
naming himself as executor, which will was witnessed by his own wife and mother, and bequeathing
the IPs entire $3 million estate to a trust for which he would serve as trustee. The court also held that
the Court Examiner's fees in excess of the statutory guideline schedule was justified by the
“extraordinary circumstance” of the covert nature of the guardians’s self dealing.
United States Fire Insurance Company, etc. v. Camille A. Raia, et al, 95 A.D.3d 420; 942
N.Y.S.2d 542 (2nd Dept. 2012)
In an action by the bonding company against the Court Examiner for legal malpractice and breach
of fiduciary duty for failing to discover a guardians’s misappropriation of the IP’s funds, the
Appellate Division Second Department affirmed the trial court’s dismissal of the Complaint on two
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