In re Nunziata

72 Misc.3d 469

148 N.Y.S.3d 841

In the MATTER OF the Application of Nancy NUNZIATA, Commissioner of the Nassau County Department of Social Services, Petitioner, For the Appointment of a Guardian for Nancy K., An Alleged Incapacitated Person, Respondent, William McEnaney, Cross-Petitioner.

850023—I-2021

Supreme Court, Nassau County, New York.

Decided on April 15, 2021

Counsel for Petitioner: Nancy Nunziata, Commissioner of the Nassau County Department of Social Services, David Zachary Carl, Esq., Firm Name: Nassau County Department of Social Services, Address: 60 Charles Lindbergh Blvd Ste 160, Uniondale, NY 11553, Phone: (516) 227-8561, E-mail: David.carl2@hhsnassaucountyny.us

Court Appointed Counsels for Nancy K., Alleged Incapacitated Person, Elisa Strassler Rosenthal, Esq., Firm Name: Rosenthal Law LLC, Address: 1050 Franklin Ave Ste 302, Garden City, NY 11530, Phone: (516) 361-6606, E-mail: ERosenthal@elderlawflg.com, Brian R. Heitner, Esq., Firm Name: SELTZER SUSSMAN HABERMANN & HEITNER LLP, Address: 100 Jericho Quad Suite 226, Jericho, NY 11753, Phone: 516-935-3600 Fax: 516-933-3030, E-mail: Bheitner@sshlaw.com

Court Evaluator, Edward Francis Cunningham, Esq., Firm Name: EDWARD F. CUNNINGHAM, ESQ., Address: 62 Cambridge Ave, Garden City, NY 11530, Phone: (516) 328-3705, E-mail: Ed@edcunninghamlaw.com

Temporary Guardian, Lloyd Jeffrey Weinstein, Esq., Firm Name: THE WEINSTEIN GROUP, P.C., Address: 6800 Jericho Tpke Ste 112w, Syosset, NY 11791, Phone: (516) 802-5330, E-mail: ljw@theweinsteingroup.net

Counsels for the Cross-Petitioner, Donald Novick, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: DNovick@novicklawgroup.com, Kimberly Arlen Schechter, Esq., Firm Name: Novick & Associates, P.C., Address: 202 East Main Street, Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: KSchechter@novicklawgroup.com, Albert Vincent Messina, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 6315470300 Fax: 631-547-0212, E-mail: AMessina@novicklawgroup.com

Gary F. Knobel, J.

The motion by the cross-petitioner, after the commencement of the hearing in this special proceeding, for an order directing the disclosure to him of the adult protective services ("APS") file pertaining to the alleged incapacitated person, presents an issue of first impression on the extent of discovery permitted to an interested party in a guardianship proceeding within the context of the confidentiality mandates of Social Services Law § 473-e.

This proceeding, commenced by the Commissioner of the Nassau County Department of Social Services pursuant to Article 81 of the Mental Hygiene Law, seeks a judgment appointing an independent guardian for the personal needs and property management of the alleged incapacitated person, Nancy K. ("AIP"). The fifty-plus page petition is replete with allegations of elder abuse in the guise of financial exploitation and emotional abuse. The main focus of the petition is to set aside and void the advanced directives executed on October 8, 2019, and to void the marriage entered into on November 8, 2020, between the AIP and the cross-petitioner, William McEnaney.

The cross-petition seeks an order dismissing the petition and permitting the cross-petitioner to care for the AIP using the advanced directives put in place in 2019. The cross-petitioner alternatively seeks, if the court determines that an independent person should be appointed the guardian of the person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed a permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP, with the power to handle her property management affairs and determine her medical and personal care.

During an interlude in petitioner's direct case (to date a caseworker and her supervisor have testified), the cross-petitioner's counsel moved for the disclosure of the entire APS file pursuant to a proposed subpoena duces tecum. By order dated March 25, 2021 (Knobel, J.) this court held the motion in abeyance pending an in camera review of the APS file by the Court.

The cross-petitioner contends that he is entitled to the disclosure of petitioner's proof that it may offer in support of its petition, to wit, "[a]ll reports, case notes, interviews, and memoranda that concern, refer or relate to the allege incapacitated person, Nancy K., for the period of January 1, 2015, through February 19, 2021." The cross-petitioner argues that these documents are relevant and necessary on the ground that these documents "bear upon the credibility of individuals who will give testimony in this matter, to establish a time line of events relevant to the complaint made to Adult Protective Services, to discover any admissions or statements concerning the capacity of Nancy K. and the actions of William McEnaney, the existence of any statements against interest from any party or witness in this action and to establish whether the relief in the cross-petition should be granted, i.e. , the existence of admissible evidence concerning the propriety of William McEnaney to serve as guardian of the person and property of the alleged incapacitated person, Nancy K".

Petitioner and counsel for Nancy K. vehemently oppose any disclosure of the contents of the file to the cross-petitioner, contending, inter alia , that the records sought are confidential and not subject to disclosure to the cross-petitioner pursuant to Social Services Law 473-e. Counsel for the AIP argues that this statute permits court-appointed counsel for the AIP and the temporary guardian to review the subject documents, and that the proposed subpoena duces tecum should not be signed by the Court since the subpoena seeks, as in the Second Department case of Valdez v. Sharaby , 258 A.D.2d 458, 458, 684 N.Y.S.2d 595 [2d Dept. 1999], records for the purpose of obtaining information to impeach the general credibility of witnesses.

Social Services Law § 473-e, titled "Confidentiality of protective services for adults' records," provides as follows:

"1. Definitions. When used in this section unless otherwise expressly stated or unless the context or subject matter requires a different interpretation:

(a) "Subject of a report" means a person who is the subject of a referral or an application for protective services for adults, or who is receiving or has received protective services for adults from a social services district.

(b) "Authorized representative of a subject of a report" means (i) a person named in writing by a subject to be a subject's representative for purposes of requesting and receiving records under this article; provided, however, that the subject has contract capacity at the time of the writing or had executed a durable power of attorney at a time when the subject had such capacity, naming the authorized representative as attorney-in-fact, and such document has not been revoked in accordance with applicable law; (ii) a person appointed by a court, or otherwise authorized in accordance with law to represent or act in the interests of the subject; or (iii) legal counsel for the subject.

2. Reports made pursuant to this article, as well as any other information obtained, including but not limited to, the names of referral sources, written reports or photographs taken concerning such reports in the possession of the department or a social services district, shall be confidential and, except to persons, officers and agencies enumerated in paragraphs (a) through (g) of this subdivision, shall only be released with the written permission of the person who is the subject of the report, or the subject's authorized representative, except to the extent that there is a basis for non-disclosure of such information pursuant to subdivision three of this section. Such reports and information may be made available to:

(a) any person who is the subject of the report or such person's authorized representative;

(b) a provider of services to a current or former protective services for adults client, where a social services official, or his or her designee determined that such information is necessary to determine the need for or to provide or to arrange for the provision of such services;

(c) a court, upon a finding that the information in the record is necessary for the use by a party in a criminal or civil action or the determination of an issue before the court;

(d) a grand jury, upon a finding that the information in the record is necessary for the determination of charges before the grand jury;

(e) a district attorney, an assistant district attorney or investigator employed in the office of a district attorney, a member of the division of state police, or a police officer employed by a city, county, town or village police department or by a county sheriff when such official requests such information stating that such information is necessary to conduct a criminal investigation or criminal prosecution of a person, that there is reasonable cause to believe that the criminal investigation or criminal prosecution involves or otherwise affects a person who is the subject of a report, and that it is reasonable to believe that due to the nature of the crime under investigation or prosecution, such records may be related to the criminal investigation or prosecution;

(f) a person named as a court-appointed evaluator or guardian in accordance with article eighty-one of the mental hygiene law, or a person named as a guardian for the mentally retarded in accordance with article seventeen-A of the surrogate's court procedure act; or

(g) any person considered entitled to such record in accordance with applicable law.

3. The commissioner or a social services official may withhold, in whole or in part, the

...