In re Farley

210 N.Y.S.3d 682

In the MATTER OF the Application of Christopher J. FARLEY, Petitioner, for the Appointment of a Guardian for Jane Doe, Respondent, an Alleged Incapacitated Person.

Supreme Court, Monroe County.

Decided on April 11, 2024

DUTCHER & ZATKOWSKY, Rochester, New York (Miles P. Zatkowsky, Esq. and Yolanda Rios, Esq.) for Petitioner Christopher J. Farley

AARON M. GAVENDA, ESQ., Rochester, New York, VIVEK J. THIAGARAJAN, ESQ., Webster, New York; and JANE FARLEY, ESQ., Laurelton, New York for Cross-Petitioner Jonathan Farley

Christopher S. Ciaccio, J.

In this highly contentious Article 81 proceeding, brothers Christopher Farley and Jonathan Farley have each petitioned to be guardian Jane Doe, an alleged incapacitated person. Before the court is consideration of whether to impose sanctions on Jonathan Farley for filing frivolous motions and proceedings. Also to be considered is whether to order him to pay the attorney fees incurred by Christopher Farley in opposing the motions.

The proceedings for consideration are as follows: 1) the issuance of a subpoena for the bank records of the AIP Jane Doe, 2) a letter that accompanied the subpoena that requested as well the bank records of Christopher Farley, 3) motion seeking a) removal of the Temporary Guardian Christopher Farley, who had been appointed by the court in March 2023, b) the return of the AIP to her former residence; c) dismissal of the Petition for failure to properly serve Jonathan Farley, and d) appointment of a third-party, non-family temporary guardian, and e) a fee award.

After commencement of the guardianship proceeding, and after some initial jockeying, the court issued a Day Certain Order, setting the trial date of as July 10, 2024. The Order directed that notice of any forthcoming pre-trial in limine motions be provided seven days before trial and that the motions be filed at least four days prior to trial.

On July 7, 2023, Vivek Thiagarajan, Esq. filed a Notice of Appearance as co-counsel for Jonathan.

On the day of trial Jonathan, by his attorneys, and on behalf of Jane Doe, requested that the trial take place in Jane Doe’s presence at her nursing home, even though the parties had previously stipulated that Jane Doe would appear virtually from her nursing home. The trial was adjourned.

On or about July 11, 2023, Christopher received a letter from JPMorgan Chase Bank ("Chase") that it had been served with a subpoena, issued from Mr. Gavenda’s office, seeking information concerning his financial information. His attorney, Miles Zatkowsky, requested of Aaron Gavenda, counsel for Jonathan, a copy of the subpoena. When it did not come, Mr. Zatkowsky sent an e-mail to Mr. Gavenda, on notice to all counsel and the Court Evaluator, requesting the immediate withdrawal of the subpoena pursuant to CPLR 2304 (see NYSCEF # 67), and then moved by Order to Show Cause to quash the subpoena.

In his response to the motion to quash, Mr. Gavenda admitted that he had "authorized" a "Subpoena Duces Tecum" for financial records relative to Jane Doe, because, he felt, "with further investigation into Respondent’s accounts, we can figure out what exactly the respondent’s assets are at this time as we have been shown conflicting information about the Respondent’s resources."

Mr. Gavenda’s letter accompanying the subpoena stated that he was also requesting information regarding any accounts held in the name of Christopher Farley.

Mr. Gavenda, in open court at oral argument, admitted to not providing notice to Mr. Zatkowsky and also including a request for Christopher Farley’s financial information. He attributed these errors to clerical mistakes, but also admitted that he included Christopher Farley’s name in the cover letter because "there may be a joint account between Jane Doe and Christoper J. Farley," and because "the Petitioner (Christopher J. Fairly) has been acting as the Power of Attorney since at least 2017." Thus, he admitted, his client should have "access to the documentation requested" as this is a proceeding to "determine whether the Temporary Guardian has done his due diligence on behalf of the Respondent …."

On July 21, 2023, Jonathan filed the motion (motion # 6) for removal of Christopher as Temporary Guardian.

All counsel appeared on July 31, 2023, for oral argument on both motions. The motion to quash was granted, on the grounds that proper notice of the subpoena as required by CPLR 3120 was not given to counsel, and the materials sought were not relevant to the proceeding and were beyond the scope of allowable discovery under Article 81.

The motion to remove the Temporary Guardian and other relief was deemed to be frivolous and denied in its entirety.

The court scheduled a hearing to determine whether costs should be awarded to Christopher or his attorneys and whether financial sanctions should be imposed upon Jonathan or his attorneys pursuant to 22 NYCRR 130-1.1. Counsel for Christopher and Jonathan appeared and presented their respective arguments. Post-hearing submissions were filed on behalf of both parties, but a request for a specific attor- ney’s fee and disbursement award with supporting documentation was not made on behalf of Christopher or his counsel.

Following the sanctions hearing, the Court issued an Amended Day Certain Non-Jury Trial Order directing that opening statements and the presentation of proof relative to the Petition and Cross-Petition would commence at the residence of Jane Doe, the Legacy at Cranberry Landing, on December 18, 2023 (NYSCEF # 106).

Discussion

An award of costs or imposition of sanctions resulting from frivolous conduct is governed by 22 NYCRR 130-1.1, which states in part:

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court … 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…

Costs are awarded to the "party or lawyer — who sustained the expense caused by the frivolous conduct." (Siegel & Connors, New York Practice § 414A at 807 [6th ed 2018].)

A "sanction" is "a separate monetary assessment imposed as a punishment for the frivolous conduct … best described as a ‘punitive’ award" (id.). The sanction imposed may not "exceed $10,000 for any single occurrence of frivolous conduct" (22 NYCRR 130-1.2). If the sanction "is assessed against the party, it goes to the clerk for deposit into the public treasury; if it’s assessed against the lawyer, it goes to the Lawyers’ Fund for Client Protection, the fund set up to recompense the victims of dishonest lawyers" (Siegel & Connors, New York Practice § 414A at 807 [6th ed 2018]; see 22 NYCRR 130-1.3).

"[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (LG 101 Doe v. Wos, 216 A.D.3d 1393, 1395, 188 N.Y.S.3d 830 [4th Dept. 2023], quoting Marshall v. Marshall, 198 A.D.3d 1288, 1289-1290, 156 N.Y.S.3d 611 [4th Dept. 2021] and 22 NYCRR 130-1.1 [c]).

Factors for the court to consider in determining whether conduct was frivolous include, "among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR 130-1.1 [c]).

DISCUSSION

Motion to Quash

[1] The attempt to use a subpoena duces tecum to conduct discovery was "… completely without merit in law" and could not "be supported by a reasonable argument for an extension, modification or reversal of existing law (22 NYCRR 130-1.1 [c]).

Mr. Gavenda has admitted that the purpose of the subpoena was not to produce documents needed for trial, which was only days away, but to conduct discovery, i.e., as he stated, "… with further investigation into Respondent’s accounts, we can figure out what exactly the respondent’s assets are at this time …"

[2, 3] "An Article 81 proceeding is a special proceeding" (Matter of Allen, 10 Misc.3d 1072[A], 2005 N.Y. Slip Op. 52223[U], *2, 2005 WL 3670919 [Sup. Court, Tompkins County 2005]; see Matter of Bank (B.L.), 72 Misc.3d 619, 623, 149 N.Y.S.3d 847 [Sup. Court, New York County 2021]). "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 2021], citing Matter of Suit-Kote Corp. v. Rivera, 137 A.D.3d 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 A.D.3d 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 Aylward v. City of Buffalo, 101 A.D.3d 1743, 1743, 957 N.Y.S.2d 788 [4th Dept. 2012] [CPLR 408 "requires a court’s leave to obtain formal disclosure beyond a notice to admit"]).

[4] Even if the subpoena was not intended to obtain information about Christopher’s bank accounts, it was an improper vehicle for obtaining discovery concerning Jane Doe’s accounts. "A subpoena duces...