This proceeding is a petition filed by Suzanne Bednarek, seeking an accounting by Elizabeth Ingersoll, as agent under a power of attorney (POA) for their mother, Elizabeth K. The petition also seeks the revocation of the power of attorney from Elizabeth K to Elizabeth Ingersoll, and enforcement of certain provisions of the June 15, 2018 Decision and Order of this Court in a related matter: Ms. Bednarek’s petition for the appointment of an Article 81 guardian for Elizabeth K.The parties entered into a Stipulation setting forth the timing of Ms. Ingersoll’s delivery of her POA accounting. The timing of the accounting has been modified by subsequent stipulations entered into by the parties.On or about December 26, 2018, Ms. Ingersoll filed a motion requesting an Order striking portions of the Court’s June 15, 2018 Decision in the related guardianship matter.1 The Court set a return date on the motion of January 28, 2019, on submission. The motion is supported by an affidavit dated December 20, 2018 of Denice Hamm, Esq., counsel for Ms. Ingersoll. Ms. Bednarek submitted papers in opposition to the motion on January 15, 2019, including an affirmation from her counsel, Douglas J. Mahr, Esq. and a memorandum of law. Ms. Hamm filed a reply on January 28, 2019.This motion seeks to vacate certain portions of the Court’s June 15, 2018 Decision and Order in the related guardianship matter. Arguably, the motion is procedurally defective for that reason and could be dismissed. The Court will instead address the substance of the motion.Even if this motion is considered as having been filed in the related guardianship action, it is procedurally defective and would be dismissed as a motion for reconsideration or reargument. A motion for re-argument must be identified specifically as such, be based upon matters of fact or law allegedly overlooked or misapprehended by the Court and shall be made within 30 days of service of the order. CPLR 2221(d). A motion to reargue shall also be identified specifically as such, shall be based upon new facts not offered in the prior motion that would change the prior determination, and contain reasonable justification for a failure to present such facts. CPLR 2221(3). This motion satisfies none of the statutory requirements for either a motion to renew or reargue.In her reply to the response to this motion, Ms. Ingersoll clarifies an alternative basis for the granting of her motion: it should be treated as a motion to vacate under CPLR 5015(a)(4). Ms. Ingersoll argues that since she was “a person on notice” of the guardianship proceeding, rather than a “party,” the Court lacked jurisdiction to order her to reimburse funds to her mother. Ms. Ingersoll misapprehends both her own status in the Article 81 proceeding and the Court’s jurisdiction and authority in that proceeding.Ms. Ingersoll was a person entitled to notice of the Article 81 proceeding pursuant to MHL §81.07(g)(1). Ms. Ingersoll appeared at the initial hearing date on June 6, 2017, without counsel. On August 10, 2017, Denice Hamm, Esq., filed a Notice of Appearance on behalf of Ms. Ingersoll and appeared and participated at all future proceedings in the Article 81 over the next ten months. Ms. Ingersoll submitted her own motion for summary judgment in the Article 81, which was handled in parallel with Mrs. K’s motion for dismissal. Ms. Ingersoll’s motion papers included a copy of the check register for the joint account from which the disputed checks for payment/reimbursement of Ms. Ingersoll’s legal fees were drawn. Ms. Ingersoll appeared, through counsel, at the oral argument on the motions to dismiss on May 30, 2018, where the issue of Ms. Ingersoll’s use of the joint account funds for her own legal expenses, though ancillary to the motion to dismiss the Article 81 proceeding, was raised.Ms. Ingersoll never formally filed a cross-petition to be appointed as guardian for her mother. At the same time, Mrs. K’s pleadings included a nomination of Ms. Ingersoll as guardian, should the Court have found an appointment necessary. The Court finds that Ms. Ingeroll’s formal appearance through counsel and her active participation in the guardianship proceedings renders her subject to the Court’s jurisdiction in the Article 81 proceeding, despite her not being named as petitioner or respondent in that proceeding. See, e.g., In the Matter of Luisa P., 153 AD3d 1262, 1263 (2d Dept 2017) (court affirmed issuance of injunctive relief against non-party individual); In the Matter of Barbara Hultay v. Mei Wu S., 140 AD3d 502 (1st Dept 2016) (court had jurisdiction to grant injunctive relief against nonparty individual).The Court’s exercise of its jurisdiction over Ms. Ingersoll in the Article 81 includes its ability to make a determination on the amount and source of payment legal fees pursuant to MHL §81.10(f). The determination made by the Court in its decision on the motion to dismiss the Article 81 proceeding was that the participating parties pay their own legal fees, and that petitioner and Mrs. K split the expense of the Court Evaluator.The Court’s determination that it had proper jurisdiction over Ms. Ingersoll in the Article 81 proceeding warrants the dismissal of the currently pending motion as a motion for vacatur under CPLR 5015(a)(4). However, that does not conclude the analysis. Ms. Ingersoll is correct that the Court’s direction that she reimburse funds to the joint account to the extent that her fees were paid from it goes beyond the Court’s appropriate determination that the participating parties be responsible for their own legal fees. The issue of Ms. Ingersoll’s authority to pay or reimburse her legal fees as a gift from her mother is a distinct issue and was not before the Court on the May 30, 2018 motions to dismiss the Article 81 proceeding. See, e.g., Matter of Dandridge, 120 AD3d 1411 (2d Dept 2014) (while clear evidence of incapacity warranted Supreme Court’s annulment of marriage, formal application for such relief was not made and non-party spouse was entitled to notice and opportunity to be heard; matter remanded for hearing).The currently pending action, in which this motion is brought, is for an accounting by Ms. Ingersoll as agent for her mother; a determination as to the propriety of transactions she undertook as agent; and a determination of the continued viability of the power of attorney as an effective resource for Mrs. K. In the context of this proceeding, Ms. Bednarek will have the opportunity to challenge Ms. Ingersoll’s authority to make any and all agent transactions, including those which paid or reimbursed Ms. Ingersoll’s legal fees in the Article 81 proceeding. Ms. Ingersoll will similarly have the ability to establish her authority with respect to questioned transactions.2Ms. Ingersoll’s motion to vacate those portions of the Court’s June 15, 2018 Decision and Order in the related guardianship proceeding, which directed Ms. Ingersoll to reimburse Mrs. K’s joint account for any funds withdrawn by Ms. Ingersoll to pay her own attorney’s fees, is granted. The validity of those transactions will be determined by the Court in this proceeding.Therefore, based on the foregoing, it is herebyORDERED, that the motion of Elizabeth Ingersoll is GRANTED, and the following portions of the Court’s June 15, 2018 Decision and Order shall be stricken:The following line from Page 14, second full paragraph: “Ms. Ingersoll is directed to reimburse the joint account for any such funds withdrawn by her, within thirty (30) days of the date of this Order, and provide evidence to petitioner’s counsel, and the Court, that she has done so.”Third “ORDERED” paragraph on page 16: “ORDERED, that Elizabeth Ingersoll is directed to reimburse the joint account she shares with Elizabeth K for any funds withdrawn by her to pay her own attorney’s fees to Denice Hamm, Esq., within thirty (30) days of this Order, and to provide evidence of such repayment to all counsel, and the Court; and it is further”This Decision constitutes the Order of the Court.Date: February 4, 2019
