Matter of Kover

134 A.D.3d 64, 19 N.Y.S.3d 228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2015
• Docket: 401545/12
• Status: Published

Opinions

OPINION OF THE COURT

Andrias, J.

The nonparty appellants, Burton Citak and Donald L. Citak, by their firm Citak & Citak, represented Dr. Eva Dworecki, the alleged incapacitated person (AIP), in this guardianship proceeding. In this appeal, there are two primary issues before us.

The first is whether the court abused its discretion when it imposed monetary sanctions and/or costs pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 upon Burton and/or Donald based on their conduct in connection with their applications seeking, inter alia, to bar the entry of the coguardianship order and to dismiss the petition. For the reasons that follow, we find that Donald, but not Burton, engaged in frivolous conduct within the meaning of section 130-1.1, and that the imposition of sanctions and costs against Donald was not an abuse of discretion. However, as to the amount and scope of the costs, we vacate the award and remand for compliance with 22 NYCRR 130-1.2 in accordance with this decision.

The second issue is whether the court erred in denying Citak & Citak any attorney’s fees. We find that the denial of all fees is not warranted and that Citak & Citak is entitled to the reasonable fees for the work performed prior to Donald’s sanctionable conduct.

Although it is a primary focal point of the dissent, which believes that neither Citak should be sanctioned for his “missteps” and that the court below is to blame for everything that transpired, the issue of whether the court erred in entering the coguardianship order, without either confirming the consent of Dr. Dworecki or conducting a capacity hearing, is not before us. Indeed, the attorney who replaced Citak & Citak as counsel for Dr. Dworecki represented to the court at the sanctions hearing that she discussed the temporary coguardianship at length with Dr. Dworecki and “was very confident . . . that she had no desire to appeal.” Nor, under the particular circumstances of this case, where Donald initiated, participated in and consented on behalf of Dr. Dworecki to the procedure adopted by the court, then denied his role and falsely accused the court of wrongdoing and fraud, would any such error, in and of itself, excuse the sanctionable conduct at issue, including Donald’s material false statements in support of his applications.

Pursuant to article 81 of the Mental Hygiene Law, in July 2012 petitioner, as vice-president of Nazi Victim Services Program of Selfhelp Community Services, Inc. (Self Help), sought to have a guardian appointed for the person and property of Dr. Dworecki, age 94. Self Help had been providing community based services to Dr. Dworecki since 2002 and was concerned that her short term memory, judgment, and ability to perform the activities of daily living had been declining and that she was refusing to obtain necessary additional home care services. This included Dr. Dworecki’s inability to cook, clean her apartment and person, and manage her medications by herself.

Dr. Dworecki’s friend and financial advisor, Edward Muster, procured Citak & Citak to represent her in opposing the petition. Mr. Muster is the primary beneficiary under Dr. Dworecki’s last will and testament, executed on August 11, 2010. Although Mr. Muster claims that he was not present when the will was executed, he states in an affidavit that “[p]rior to the preparation of the Will, [Dr. Dworecki] told me what she wanted included in the Will. As on other occasions, I followed [her] instructions.” Thus, it appears that he was responsible for its preparation. The Citaks also acknowledge that on August 7, 2012, after being retained to defend this proceeding, they prepared, and filed in the Surrogate’s Court, a new will for Dr. Dworecki which did not materially change the terms of the 2010 will.

Mr. Muster is also Dr. Dworecki’s attorney-in-fact under a power of attorney executed on March 20, 2012. At the commencement of this proceeding, the court restrained him from using the power of attorney until the hearing of the application, and appointed Matthew Milford, Esq., as the neutral Court Evaluator to report on Dr. Dworecki’s condition. During the four-month period between the execution of the power of attorney and the issuance of the stay, Mr. Muster had not used his authority under the instrument to obtain any of the additional personal and home care services that Dr. Dworecki needed to address the issues that Self Help had identified.

In his report dated August 7, 2012, the Evaluator stated that Dr. Dworecki seemed confused when he told her that Burton was her attorney. Noting that Mr. Muster had procured Burton, the Evaluator stated that the “nature of this apparent conflict of interest is unclear to the Affirmant.”

Although the Evaluator believed that Mr. Muster competently managed Dr. Dworecki’s assets, he opined that Mr. Muster “has not been able to provide for her personal needs satisfactorily up [to] the present moment. Thus, pursuant to the Affirmant’s recommendation, it may be necessary to appoint a guardian of the person and property of Dr. Dworecki.” The Evaluator noted that Dr. Dworecki had a number of health issues that compromised her ability to handle her affairs of daily living satisfactorily, including irreversible functional deficits. While Dr. Dworecki believed that she had more ability to manage activities of daily living than she in fact did, that false belief was based in large part on her extreme frugality. In that regard, the Evaluator noted that Dr. Dworecki “may not fully understand the extent of her wealth and the ease with which she could provide herself with all the assistance she clearly requires.”

Despite these findings, the Evaluator suggested that the court consider the sufficiency and reliability of alternative resources to provide for Dr. Dworecki’s needs without the appointment of a guardian. Towards this end, the Evaluator recommended that the court reinstate Mr. Muster’s power of attorney and adjourn the case to provide him with a short period of time to get Dr. Dworecki the additional personal and home care services she needed. However, the Evaluator also stated that “[i]f the Court finds it necessary to appoint a Guardian for the Person and/or Property, the Guardian should be appointed for an indefinite period of time. The powers outlined in [the] Petition should be granted.”

At an August 9, 2012 court conference, Dr. Dworecki appeared, represented by Burton. Mr. Muster and the Evaluator were also present. After conferring with the attorneys and the Evaluator, the court told Dr. Dworecki that they had been discussing whether something could be put in place that would enable her “to have all of the services that you need so that we’re sure that you are safe and you are not at risk in any way and that your are comfortable without having a guardian necessarily appointed for you.” The court explained that in furtherance of that goal, the attorneys had agreed that an interim special guardian should be appointed by the court for a trial period during which the extent of her needs would be assessed, and that this had to be done by a neutral, rather than an interested party. Dr. Dworecki acknowledged her need for assistance and agreed with the court that a trial period to ensure that she received the necessary services right away, and to evaluate her needs, “ma[de] sense.”

The court next informed Dr. Dworecki that Mr. Muster could continue to help with her fixed expenses, such as rent and telephone, but that the new special services would be implemented by the interim special guardian, and that Dr. Dworecki would have to pay for those services. In open court, Burton reiterated to Dr. Dworecki that she had to pay for the new services and that the purpose of the trial period was to assess the extent of the services needed, after which a decision would be made as to which services were worthwhile. The court then adjourned the matter for several months during which the alternative resources provided to Dr. Dworecki would be monitored to determine whether there was a need for a permanent guardian.

To effectuate the plan, by order dated August 10, 2012, the court, based on Dr. Dworecki’s acknowledgment of her need for assistance and consent, appointed Sabrina Morrissey, Esq., as the interim special guardian for the trial period. The court also revoked any power of attorney or health care proxy previously executed by Dr. Dworecki and, as agreed, permitted Mr. Muster to continue to assist Dr. Dworecki in paying her monthly bills.

In four reports over the next five months, Ms. Morrissey outlined the services that she put in place for Dr. Dworecki. In addition to hiring home health aides, Ms. Morrissey obtained Dr. Dworecki’s consent to cataract surgery, which Mr. Muster had been unable to obtain, which restored her ability to read. Ms. Morrissey also obtained Dr. Dworecki’s cooperation for new personal and home care services, including physical therapy, which improved Dr. Dworecki’s ambulation, as well as regular visiting nurse services, dental care, additional meal delivery and house cleaning. She also improved Dr. Dworecki’s social interaction by retaining service providers who spoke German and Spanish, which Dr. Dworecki spoke and wanted to practice, and by arranging for holiday dinners and celebrations. Based on the vast improvement that these services had made in the quality of Dr. Dworecki’s life, Ms. Morrissey believed that a permanent guardian was needed to ensure that the services would continue.

At a January 16, 2013 status conference, at which Dr. Dworecki’s appearance was waived due to severely inclement weather, Donald advised the court that he wanted, on behalf of Dr. Dworecki, to avoid a competency hearing, which would be a difficult case for his client in terms of avoiding a finding of incapacity. While stating that at times Dr. Dworecki expressed her objection to a permanent guardianship, Donald advised the court, inter alia, that “if Mr. Muster and Ms. Morrissey, together, given the relationship that has developed, were indicated to be the joint temporary guardians, [Dr. Dworecki] would consent to that arrangement.”

In the extensive discussion on the record that followed, the court, which had the opportunity to observe and converse with Dr. Dworecki at the prior conference, set forth a well-modulated and nuanced structure for the temporary coguardianship, including the respective roles of Ms. Morrissey and Mr. Muster. The court then asked that the attorney for petitioner “settle [a] final order and judgment”¹ and stated that “this would also be an adjudication of a person in need of a guardian, since it’s on consent and we have not had a full hearing with an adjudication of incapacity.” The Citaks, who readily acknowledged the benefits Dr. Dworecki was reaping from the new services being provided, did not object to the parameters for the temporary coguardianship set forth by the court, including the limitation of Mr. Muster’s powers, or otherwise indicate that a competency hearing, which they stated that they and Dr. Dworecki wanted to avoid, was required.

By order dated January 30, 2013, the court directed that the interim special guardian settle a final order and judgment on notice consistent with its directives, which were set forth in the order, and based on “the reports of the special guardian and Dr. Dworecki’s continued acknowledgment of her need for assistance and her consent to a temporary guardianship, as confirmed by her attorneys.” Citak & Citak took no action at that time to dispute Dr. Dworecki’s consent or to contest the court’s directives, and on February 15, 2013 submitted an affirmation of services in which Burton stated, “We are continuing to work with the Court and Ms. Morrissey to craft a fair and limited Final Order, which provides for the assistance needed by Dr. Dworecki, while preserving and safeguarding her independence and self-dignity.”

In March 2013, the interim special guardian submitted a proposed order and judgment on notice to all parties. Citak & Citak did not submit a counter order and judgment. Instead, the firm submitted an order to show cause upon the affirmation of Donald (motion seq. No. 2), which sought to (i) stay the entry of any order appointing a guardian for Dr. Dworecki; and (ii) schedule an evidentiary hearing to determine Dr. Dworecki’s need for a guardian.

Donald now asserted that Dr. Dworecki had not consented to the appointment of a guardian and that the court “appears to have completely ignored Dr. Dworecki’s wishes and appears ready to run completely roughshod over them and her rights.” Donald alternatively asserted that any consent that purportedly was given on Dr. Dworecki’s behalf was predicated on Mr. Muster being appointed as coguardian to manage her financial affairs without limitation, and that the court had wrongfully denied Dr. Dworecki her right to a full hearing and finding of incapacity.

Donald also accused the court of intervening in an “unwarranted, unrestricted and heavy-handed manner,” and asserted that “[t]he attempt to hide, misconstrue or conceal facts from Dr. Dworecki is problematic and any attempt to do so is simply an injustice to Dr. Dworecki and deprives her of her rights and dignity.” In a supporting affidavit, Dr. Dworecki stated that

“[t]hrough my attorneys, I did indicate, that if the Court felt that a Guardian was absolutely necessary to assist me in certain limited personal aspects of my life (such as assisting me in the morning and in the evening with dressing, bathing, or preparing a meal), I would only consent under such circumstances that my dear friend, Edward Muster, whom I regard as my son, was appointed as my Co-Guardian.”

At a March 11, 2013 hearing addressing the request for a temporary restraining order contained in the order to show cause, Donald maintained that he had not consented to the appointment of a guardian on Dr. Dworecki’s behalf and that he had in fact objected to that. After reviewing the poor state of Dr. Dworecki’s health and living conditions prior to the guardianship, and all of the services that she was now receiving, which resulted in significant improvements to her health, happiness and quality of life, the court admonished Donald, stating that

“if you feel that the circumstances have so changed that she no longer needs a guardian, then that’s one way to approach your application. But approaching your application by condemning everything that happened here and Ms. Morrissey and the person in need of a guardian adjudication for which you participated in and to which you consented is not acceptable to me.”

The court nevertheless signed the order to show cause with the temporary restraining order, stating that a guardianship hearing would be held.

By order to show cause signed on April 12, 2013, petitioner moved to remove Citak & Citak as Dr. Dworecki’s attorneys

“because of a conflict of interest in their representation of the Doctor, their unfamiliarity with Article 81 Law, their frivolous and untrue allegations against the Petitioner, their unethical behavior toward the Doctor and other interested parties herein that may border on malpractice, and a general lack of professional courtesy — both toward their alleged ‘client’ and toward other attorneys on this case, and the Court, by asserting frivolous and untrue information and allegations.”

Petitioner questioned whether the Citaks were acting to protect Dr. Dworecki’s interests or Mr. Muster’s, and asked the court to appoint and authorize new counsel to, inter alia, determine whether proceedings are necessary to void the 2010 will naming Mr. Muster as Dr. Dworecki’s primary beneficiary. Petitioner also requested that the court deny legal fees to Citak & Citak or substantially reduce their fee request.

On April 16, 2013, Citak & Citak presented another order to show cause (motion seq. No. 4), which sought various relief, including dismissing the petition due to alleged violations of Dr. Dworecki’s rights and the recusal of Justice VisitacionLewis. Donald submitted a 46-page affirmation in support, enumerating the ways in which those rights had allegedly been violated. This included an allegation of purported intentional and deliberate efforts by the court, the interim special guardian, and social workers to mislead and deceive Dr. Dworecki by failing to disclose the truth of the proceedings, “including . . . the costs being unilaterally imposed upon her for the Guardian and the services being provided by the Guardian to Dr. Dworecki.” The court declined to sign the order to show cause.

Meanwhile, Mr. Muster retained his own counsel and opposed the dismissal of Citak & Citak as Dr. Dworecki’s counsel. From his affidavit, Mr. Muster’s concern with preserving his control over Dr. Dworecki’s assets and his status as the residuary beneficiary of her estate is apparent. Mr. Muster complained that, contrary to Dr. Dworecki’s wishes, Ms. Morrissey had made efforts to transfer Dr. Dworecki’s assets from his employer to another firm, thereby insuring that he would no longer be able to manage her portfolio. In this regard, Mr. Muster asserted that Dr. Dworecki’s “consent to the appointment of a guardian was conditioned upon the Court appointing [him] as Co-Guardian of the Property” without limitation. Mr. Muster also stated that his attorney had informed him that Mental Hygiene Law § 81.29 (d) precluded the court from invalidating Dr. Dworecki’s will, and asked that the court conduct a hearing to consider alternative resources available to Dr. Dworecki and the least restrictive form of intervention. Mr. Muster’s counsel submitted an affirmation asserting that the alternative resources available to Dr. Dworecki, primarily Mr. Muster’s power of attorney, had been ignored by petitioner and the court, and that the court had made a number of rulings that had violated Dr. Dworecki’s rights.

By affidavit sworn to April 19, 2013, Ms. Morrissey opposed Citak & Citak’s motion to stay the entry of a guardianship order, stating that the transcript of the January 16, 2013 conference confirmed that the Citaks had consented to the guardianship provided that it was labeled temporary and Mr. Muster was appointed coguardian. Emphasizing that the Citaks voiced no objections to the terms of the coguardianship set forth by the court and did not request that Mr. Muster be given any additional powers, she theorized that things had changed when Mr. Muster realized that he would no longer be managing Dr. Dworecki’s $2 million account. Ms. Morrissey also stated that the allegations in Dr. Dworecki’s affidavit complaining that the guardianship was robbing her of her independence and stripping her of her rights had never been made to her by Dr. Dworecki, who seemed to enjoy her aides, therapy and renewed social interactions.

Ms. Morrissey also addressed the motion to relieve Citak & Citak, voicing her concern over whether Dr. Dworecki was

“capable of retaining and managing her own attorneys, which was highlighted through the expressed wishes of Dr. Dworecki not to meet with the Citaks, particularly Burton Citak, Esq., alone and at night, and the upsetment [sic] caused by Burton Citak, Esq. when he met with Dr. Dworecki to discuss the guardianship proceeding.”

Lastly, Ms. Morrissey expressed her concern that the Citak’s revised course of action would result in Dr. Dworecki being found an incapacitated person, rather than a person in need, and that the label would be hurtful to her.

By order dated April 30, 2013, the court found Citak & Citak’s filings in motion seq. Nos. 2 and 4 to be frivolous under 22 NYCRR 130-1.1 (c), and directed a hearing to accord the Citaks and any interested parties an opportunity to be heard with respect to the imposition of costs and/or sanctions. The court vacated the temporary restraining order granted on March 11, 2013, denied the application to stay entry of an order appointing coguardians (motion seq. No. 2), and signed the proposed order and judgment implementing a temporary five-year coguardianship.

The court held in abeyance, pending the resolution of the sanctions issue, petitioner’s order to show cause seeking to remove Citak & Citak as Dr. Dworecki’s counsel. However, in May 2013, Citak & Citak asked to withdraw, with their counsel stating that they had attempted to locate substitute counsel for Dr. Dworecki but were unable to do so. On June 3, 2013, the court granted the Citaks’ request and appointed Ann Pinciss Berman, Esq., as new counsel for Dr. Dworecki.

Pursuant to 22 NYCRR 130-1.1 (a) and (b), the court, “in its discretion,” may award costs, including attorney’s fees, as well as impose financial sanctions against an attorney or firm that engages in “frivolous conduct.” When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent (22 NYCRR 130-1.1 [c]). Furthermore, “[t]rial judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and we will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion” (Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]).

22 NYCRR 130-1.1 (c) sets forth three categories of “frivolous conduct”: “(1) [conduct which] is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law”; “(2) [conduct which] is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another”; or “(3) [conduct which] asserts material factual statements that are false.” “Conduct which violates any of the three subdivisions [of section 130-1.1 (c)] is grounds for the imposition of sanctions” (DeRosa v Chase Manhattan Mtge. Corp., 15 AD3d 249, 250 [1st Dept 2005]). Thus, sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record (see Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [1st Dept 2002], lv dismissed 99 NY2d 576 [2003], cert denied 538 US 987 [2003]).

Upon our review of the record, we hold that the court’s finding that the orders to show cause submitted in motion seq. Nos. 2 and 4 were based on material false statements, which constituted frivolous conduct within the meaning of 22 NYCRR 130-1.1 (c) (3) warranting the imposition of costs, including attorneys’ fees, and a monetary sanction, was not a clear abuse of discretion (see Curcio v Hogan Coring & Sawing Corp., 303 AD2d 357 [2d Dept 2003]). As the court found, “the Citaks’ filings are replete with misrepresentations, omissions, distortions, and statements taken out of context; and . . . their attacks on th[e] court, its appointees, and petitioner and its counsel, are wholly without merit and made in utter bad faith.” Rather than stating that Dr. Dworecki was unwilling to consent to the coguardianship under the terms set forth by the court, and requesting a hearing on that basis alone, Donald’s submissions were rooted in material misstatements. Donald falsely asserted that he had objected on behalf of his client to the appointment of temporary coguardians and that the proposed settlement was being fraudulently forced on Dr. Dworecki by the court, when in fact he participated voluntarily, freely and on the record with respect to the imposition of the coguardianship and its terms, to which he did not object at the January 16, 2013 conference. Contrary to the Citaks’ contentions, the court afforded Citak & Citak a reasonable opportunity to be heard on the issue of sanctions (see 22 NYCRR 130-1.1 [d]).

The dissent acknowledges that the court had before it evidence that Dr. Dworecki was unable to meet many of her personal care needs and that her life was vastly improved by the services the interim special guardian obtained. Nor can the dissent dispute that the court was motivated by a genuine desire to improve Dr. Dworecki’s life. Nevertheless, the dissent would vacate the award of sanctions and costs on the grounds that Donald’s accusations that the court had run roughshod over Dr. Dworecki’s rights and engaged in fraud were justified, and cannot be said to have been made in bad faith. The dissent reasons that Citak & Citak had an ethical obligation to challenge the proposed order and judgment because the court sought to impose the coguardianship on Dr. Dworecki without conducting a hearing on the issue of incapacity or an inquiry into whether she had in fact given her unequivocal consent to the coguardianship and its terms, which was the cause of every problem that ensued. Given these circumstances, the dissent states that Donald’s intemperate and disrespectful language was not inappropriate, and that in any event, his criticisms of the court are not grounds for sanctions.

The dissent’s perspective on the issue of sanctions is skewed by viewing the proceedings through the wrong prism. While we have no quarrel with the dissent’s exposition of the rights of an AIP in an article 81 proceeding, that does not address the determinative issue in this case, namely, whether the court clearly abused its discretion in imposing sanctions and costs based on Donald’s material misrepresentations in his applications seeking to bar the entry of the coguardianship order and to dismiss the proceeding. Although the factors addressed in the dissent are relevant to determining whether the court erred in relying on Donald’s consent on behalf of his client when she was not present, as the dissent concedes, we are not asked to determine that issue on this appeal.

Nevertheless, we are compelled to address the dissent’s specific arguments. Preliminarily we note that in seeking to place the blame on the court and excusing Donald’s material misrepresentations as mere missteps, the dissent selectively ignores certain facts that unfolded during this litigation and seeks to color the issues by portraying Dr. Dworecki as a Holocaust survivor who is once again being victimized, this time by the court. In support, the dissent quotes Dr. Dworecki’s statement in opposition to the petition that the “intrusion by the government is totally without basis and reminds me of what occurred to me 75 years ago when the Nazi regime came in and took away our possessions and tried to destroy our lives solely because we were Jewish.”

However, while we fully appreciate the fears and concerns Dr. Dworecki harbors as a result of her family having to forfeit its assets to escape Nazi Germany, on the record before us, this is a false analogy. By no stretch of the imagination can it be said that the article 81 petition was instituted “without basis.” Moreover, the petitioner, the interim special guardian and the court were not seeking to confiscate Dr. Dworecki’s assets for their own benefit or to destroy her life. Rather, they were acting to improve, if not save, Dr. Dworecki’s life, by obtaining the additional personal and home care services that she desperately needed and could easily afford but was unwilling to obtain for herself due to her extreme frugality.

The dissent believes that we are being insensitive to Dr. Dworecki’s unique perspective. However, in this article 81 proceeding, the paramount concern is the best interest of Dr. Dworecki (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 64-65 [2d Dept 2007]), and the court’s role is to consider whether she is likely to suffer harm because she is unable to provide for her personal needs and manage her property and whether she adequately understands and appreciates the nature and consequences of er limited abilities (see Mental Hygiene Law § 81.02 [b] [1], [2]; Matter of Sandra S., 13 AD3d 637 [2d Dept 2004], lv denied 5 NY3d 701 [2005]). Accordingly, it would be a disservice to Dr. Dworecki to blindly defer to her extreme frugality, even if it is the result of her family’s experiences at the hands of Nazi Germany, at the expense of her overall interest in receiving the additional personal and home care services she so clearly requires to perform the activities of daily living and to ensure her safety and well-being, which were not being provided prior to the filing of this proceeding, despite her extensive financial resources.

Contrary to the dissent’s implications, Dr. Dworecki is not merely suffering from occasional senior moments and we are faced with more than the “unremarkable aspects of the normal effects of aging.” A letter from a physician, dated April 11, 2012, annexed to the Evaluator’s report, stated that the physician was treating Dr. Dworecki “for the management of her chronic medical conditions including hypothyroidism, hypertension, hyperlipidemia, osteoarthritis, and dementia” and that “[o]ver the past few months [Dr. Dworecki] had demonstrated a progressive decline in her memory and her ability to complete her activities of daily living independently.” Among other things, the physician stated that Dr. Dworecki: was unable to bathe herself completely and had difficulty dressing; was wearing the same soiled clothing during the last three home visits; could not manage her medications; could not cook or safely reheat food; had a refrigerator and freezer that contained spoiled food; and was unable to manage her commode or to clean her apartment, which was filled with clutter. As a result, Dr. Dworecki was “at risk for falls, malnutrition, illness from eating spoiled food, and due to missing doses of medications and/or taking medications too frequently.”²

The Evaluator similarly observed in his report that Dr. Dworecki had a number of health issues that compromise her ability to handle her activities of daily living satisfactorily, that she needed “daily assistance bathing, toileting, cleaning her clothes and apartment, shopping and with meal preparation.” He also observed that due to her extreme frugality, Dr. Dworecki believed that she had more ability to manage activities of daily living than she in fact had, and that she might not have fully understood that she had the means to provide herself with the assistance she clearly required.

Moreover, Dr. Dworecki’s financial vulnerability is not in dispute. Ms. Morrissey recounted how Dr. Dworecki was easily influenced, and had offered Ms. Morrissey half of her estate because she liked her. There was a fear that Dr. Dworecki considered anyone who visited her three or four times to be her best friend, and could be taken advantage of by an unscrupulous person or agency. For that reason, there was agreement among all counsel and the court at the January 16, 2013 conference that a particular agency should be barred from visiting her.

The dissent criticizes the court for not following the Evaluator’s recommendation that the court allow a trial period during which Mr. Muster would attempt to obtain the necessary services through his power of attorney. However, the dissent ignores that the court did impose the suggested trial period but, with the consent of Burton and Dr. Dworecki at the August 9, 2012 conference, appointed a neutral, Ms. Morrissey, rather than Mr. Muster to obtain the necessary additional services and assess Dr. Dworecki’s needs during that period. Particularly, Burton explained to Dr. Dworecki at the conference that the court felt that the assessment must come from an independent person, and “[t]hat is the way we want to go. That is all to help you.” The consensus to appoint a neutral appears prudent given the Evaluator’s finding that “[Mr. Muster] has not been able to provide for her personal needs satisfactorily up [to] the present moment.”

In seeking to excuse Donald’s conduct and place the blame on the court, the dissent states that article 81 does not authorize a modified adjudication of a person in need of a guardian, and that a showing of incapacity is always required. However, Mental Hygiene Law § 81.02 provides that

“(a) The court may appoint a guardian for a person if the court determines: 1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and 2. that the person agrees to the appointment, or that the person is incapacitated.”

Accordingly, where the AIP consents, a finding of incapacity is unnecessary. Here, the court acted on the basis of Donald’s consent on behalf of Dr. Dworecki to the appointment of co-guardians.³

We agree with the dissent that a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present. Pursuant to article 81 of the Mental Hygiene Law, the court must first determine whether the AIP has the requisite capacity to consent, and must then make a finding of the AIP’s agreement to the terms of the guardianship, on the record (see Matter of Cooper [Joseph G.], 46 Misc 3d 812 [Sup Ct, Bronx County 2014]). However, this was not the basis for Donald’s application to stay the entry of the guardianship order or to dismiss the proceeding. Donald did not argue that the court erred in accepting his consent on behalf of Dr. Dworecki to the appointment of a guardian, without confirming it directly from her. Rather, Donald stated that he did not give that consent and had in fact objected to the appointment of a guardian, or alternatively that there were specific limitations to Dr. Dworecki’s consent, and that the court had unilaterally ran roughshod over Dr. Dworecki’s rights.

The dissent accepts the Citaks’ argument that Donald never explicitly waived a hearing or consented to the appointment of a guardian, and merely suggested a solution under which Dr. Dworecki would be willing to continue accepting the services that had been arranged for her, which was conditioned on Mr. Muster being named as an equal coguardian, without limitation. Stating that there was no valid grounds to reject Mr. Muster as coguardian, the dissent maintains that this Court should not treat Donald’s acquiescence after the court laid out its conditions as the equivalent of consent to those terms.

However, it was Donald who charted the course of the proceedings when he advised the court, on the record on January 16, 2013, that he was “looking to . . .on behalf of our client, not to go through with a hearing to determine competency, because quite frankly, your Honor, on the objective fact[s], it would be a difficult case.” While Donald maintains, and the dissent agrees, that he always made clear that Mr. Muster’s role with respect to Dr. Dworecki’s finances could not be limited, the record proves otherwise.

The court stated at the January 16, 2013 conference, “The co-guardianship will be structured in a way that Sabrina Morrissey would be the guardian of her — full guardian of her person. Mr. Muster would serve as co-guardian of her property, with limited powers as I outlined, the day-to-day expenses” (emphasis added). After addressing Mr. Muster’s inherent conflict of interest based on his status as the residuary beneficiary of Dr. Dworecki’s estate, as well as Ms. Morrissey’s representation that Mr. Muster had told her that he had “a lot on his plate right now,” including taking care of a sick relative, and that he “seemed amenable to not having a formal role,” the court reiterated that “Ms. Morrissey would consult with Mr. Muster on major decisions, but ultimately she would make the final determination in the interest of her ward, as she sees fit.” Donald did not raise any objection to these limitations.

Still, the dissent asserts that “[i]t was known to all that Muster’s marginalization would be a deal-breaker to which Dr. Dworecki would not consent.” However, not only did Donald fail to object to the court’s allocation of powers, he expressly acknowledged that Mr. Muster’s powers would be limited when he stated at the conference:

“[W]e recognize to the extent that the issues that the Court raised exist, it was for that reason that Mr. Muster indicated that if this were to be the arrangement, it would be one where he would defer— that his appointment is as much for [Dr. Dworecki]’s benefit so that she could be assured that he was in the picture, but with respect to the legal authority, he would not have legal authority to be able to object to expenses or provisions made by Ms. Morrissey with respect to [Dr. Dworecki’s] health care.”

Furthermore, Citak & Citak submitted an affidavit, sworn to by Mr. Muster on January 16, 2013, in which he acknowledged that “[following the Conference” held that day, he had been advised that the court was willing to “appoint! ] me as Co-Guardian of the Property of Eva Dworecki, subject to the actions limitations to be set forth in the Order of Appointment” (emphasis added). Thus, Donald’s statements in support of his applications to stay the entry of the coguardianship order and to dismiss the proceeding that any consent he gave on Dr. Dworecki’s behalf was conditioned on Mr. Muster being appointed an equal coguardian, without limitation, were patently false.

The dissent’s position that the court had no basis to limit Mr. Muster’s authority or to find that his power of attorney did not adequately provide for Dr. Dworecki’s needs is puzzling. In determining the suitability of a potential guardian the court is required to consider, among other factors, any conflicts of interest between the person proposed as guardian and the AIP (Mental Hygiene Law § 81.19 [d]). A conflict of interest clearly arises when there is a potential financial gain to the person proposed as guardian at the expense of the AIP (see e.g. Matter of Mars v Beyen, 13 AD3d 91 [1st Dept 2004]; Matter of Chase, 264 AD2d 330, 332 [1st Dept 1999]). Similarly, inherent conflicts of interest between the AIP and the holder of a power of attorney may render the power insufficient to protect the AIP’s interest. Here, the potential conflicts between Mr. Muster and Dr. Dworecki are significant, calling into question his suitability as a guardian and whether his power of attorney adequately provided for Dr. Dworecki.

Unlike a child, Mr. Muster is not a relative of Dr. Dworecki. His sole basis to inherit a portion of her estate is his status as the residuary beneficiary under the 2010 will, which he apparently drafted, or the 2012 will, drafted by Citak & Citak, both of which, despite a 20-year business relationship and friendship, were not executed until Dr. Dworecki was in her 90’s. This creates at least two conflicts of interest. First, there is a conflict between Mr. Muster’s financial interest as the primary beneficiary of Dr. Dworecki’s estate and his obligation, whether as guardian or attorney-in-fact under the power of attorney, to use Dr. Dworecki’s available resources to provide her with all necessary personal and home care services, irrespective of their cost. The more Mr. Muster spends on services for Dr. Dworecki, the less he will inherit. Second, if Mr. Muster obtains the personal and home care services that Dr. Dworecki needs against her wishes (because she does not want to incur the expense), he risks alienating her, which could result in Dr. Dworecki changing her will, placing Mr. Muster in an untenable position.

The dissent believes that these conflicts are speculative. However, as reflected in the Evaluator’s report, it is clear that as Dr. Dworecki’s abilities deteriorated over time, Mr. Muster did not provide her with the additional services that she required. Among other things, the Evaluator observed that although Mr. Muster had been given the power of attorney, he did not use it to obtain any services for Dr. Dworecki in the four months before the proceeding was filed. Further, although Mr. Muster told the Evaluator that he believed that Dr. Dworecki needed more help than she was currently receiving, he indicated that one of the reasons that he did not obtain that help was because Dr. Dworecki was concerned about the cost. Indeed, Mr. Muster stated in an affidavit:

“Eva is an independent person and does not like to have others to interfere in her life. Therefore, I would not take it upon myself to act for Eva without her consent or without her asking me to take action on her behalf. If I made a suggestion to Eva regarding her care, and she rejected my suggestion, I could not force Eva to do that which I had suggested.”

Although there is no indication of any wrongdoing on his part in his management of Dr. Dworecki’s assets, the fact that Mr. Muster maintained an account for her with his employer, generating revenues for himself and/or the firm, created another inherent conflict. Furthermore, it was Mr. Muster who procured Citak & Citak’s services. While the Citaks maintain that Dr. Dworecki was their client, questions were raised as to whether Citak & Citak was at times acting to protect Mr. Muster’s interests, rather than Dr. Dworecki’s, including the preparation of the new will after this proceeding was commenced.

Thus, unlike Matter of Robinson (Schlein) (272 AD2d 176 [1st Dept 2000]), cited by the dissent, this is in fact a case where there is clear evidence that Mr. Muster had inherent conflicts of interest and that he did not use the power of attorney to obtain the services that he knew Dr. Dworecki needed. This failure to obtain needed services prior to the filing of the proceeding also distinguishes this case from Matter of Bodek (NYLJ 1202725719135, *5 [Sup Ct, Kings County 2015, Pesce, J.]), cited by the dissent, where the AIP’s needs were being met pre-petition by, inter alia, retaining a 24/7 home health aide and arranging for biweekly nursing visits.

Donald’s contention that he was surprised by the January 30, 2013 order, which directed the submission of a final order and judgment, is also belied by the record, which reflects the court’s express request for its submission: “What I would like is for Ms. Sherman [attorney for petitioner] to settle [a] final order and judgment with regard to all of this with counsel and Ms. Morrissey, and submit that to me. We will do that in a four-week period.” Indeed, when the court discussed the interim special guardian’s immediate need for certain additional powers, Donald supported the request, stating: “By way of simplicity, that might be the easiest thing to accomplish the same goal until the final order is submitted to the Court.” Furthermore, after the January 30, 2013 order was executed, Burton stated in his affirmation of services that he was trying to work out the terms of that order with the court and interim special guardian, which further establishes that the Citaks were fully aware of and had agreed to the procedure set forth by the court.

Donald’s purported objection to the adjudication that Dr. Dworecki was in need of a guardian for her person and property is also belied by the record. The court expressly stated:

“Oh, incidentally, this would also be an adjudication of a person in need of a guardian, since it’s on consent and we have not had a full hearing with an adjudication of incapacity, and we won’t need that if what we are determining is that her needs are such that she is a person in need of a guardian. Her condition includes a form of dementia which causes severe memory impairment such that she cannot remember five minutes later, and it certainly affects her ability to properly take her medications. She should not be allowed to cook or shop.”

Donald did not object to this adjudication or otherwise indicate that a hearing on competency was required. Citak & Citak’s consent on behalf of their client to the adjudication that Dr. Dworecki was a person in need at the January 16, 2013 conference is again evidenced by their failure to take action after the issuance of the January 30, 2013 order, and Burton’s affirmation of services stating that he was working with the court and the interim special guardian on the terms of a final order, which was based on that adjudication.

The dissent contends that Donald’s silence and acquiescence cannot be equated with consent. The dissent speculates that Donald did not state his objections because he reasonably believed that the court was just making suggestions and that Dr. Dworecki would have further input. However, at the sanctions hearing, the Citaks’ counsel acknowledged that if the Citaks were dissatisfied with the proposed terms of the co-guardianship outlined by the court, they

“should have spoken up, should have said something to you. Should have said ‘Look, Your Honor, before you assign to Ms. Sherman or Ms. Morrissey the drafting of a proposed order, I would like to go back to my client and have a talk with her.’ He didn’t do that. That was a mistake on his part and he acknowledges that.”

When the Citaks’ counsel persisted in claiming that his clients were confused or misunderstood that the conference was going to result in the issuance of an order, the court asked “[i]f your clients were confused or had a misunderstanding, if there was something ambiguous, why didn’t they make those applications.” Counsel replied: “They should have. You’re absolutely correct.” When the court added that instead the Citaks denied giving their consent and participating in the structure and formation of the guardianship, and had accused the court of misrepresentation and fraud, counsel replied: “I just can’t justify those words.”

The dissent’s assessment of Donald’s conduct also ignores other material admissions by the Citaks’ counsel at the July 11, 2013 hearing on sanctions, including counsel’s acknowledgment that his

“clients don’t intend to try to justify what they said in the Motion Sequence Number 4, the motion that led to your decision to consider sanctioning them. That was not excusable. I’m here not to try to justify it but to apologize on their behalf for that conduct. They regret it. I can’t stand before you and say that it was appropriate.”

When the court stated that the conduct was not just disrespectful, but that the Citaks had asserted that the court had engaged in misrepresentation and fraud, and ran roughshod over Dr. Dworecki’s rights, counsel replied: “There is no question.”⁴

The dissent posits that counsel’s statements are of no consequence because he may have made them to appease the court, even if he did not believe that the concessions and apologies were truly warranted. This is rank speculation, as is the dissent’s attempt to craft an excuse for Donald’s failure to object to the coguardianship terms when they were set forth by the court at the January 16, 2013 conference.

The dissent’s belief that Donald was right in accusing the court of fraud is particularly disturbing. In his affidavit in support of motion sequence number 4, Donald asserted:

“Dr. Dworecki has a constitutional right to know how much of her money is being spent as a result of the Orders and/or directions of this Court, what services are being procured for her, and whether she wishes to have those services. To deceive her into believing that some [one] else is paying for the services being provided to her constitutes a fraud being practiced upon her — something that this Court should never countenance much less participate in!”

However, at the August 9, 2012 conference, the court unequivocally informed Dr. Dworecki, in person, that “[t]he [additional] services will, of course, have to be paid for . . . through your funds.” When Dr. Dworecki stated that she was worried that there would be a lot of expenses that were not there before, Burton advised her “[t]here will be, yes.” When the court told Dr. Dworecki that it would review the costs of the additional services to make sure they were reasonable, but that “we’re not going to save money at the expense of your safety or your health,” Dr. Dworecki responded, “Of course not.” The dissent’s position that this disclosure pertained only to the trial period ignores the statements of the court and Burton to Dr. Dworecki, in response to her expressed concerns over costs, that only necessary services would be continued after the trial period — which clearly conveyed to Dr. Dworecki that she would have to pay for the necessary services that were retained.

As to the January 16, 2013 conference, the court and counsel again discussed the fact that even though Dr. Dworecki recognized the benefit of the additional services she had been receiving during the trial period, she remained troubled by the cost. During this discussion,, the court stated:

“So, for example, when we are talking right now about restricting things, services, because she has such a concern about the way the monies are being spent, we all know realistically that her monies are there for her. She could have anything she needs; she should have it, you know, and she should have it without discomfort, but to the extent that there is discomfort, she may not need full information about it, and, you know, that is important. . .

“It’s preferable, obviously, not to necessarily give her full information. That is just going to disturb her . . . Ms. Morrissey has been very sensitive to that and has found ways to step around various costs.”

The court did not state that Dr. Dworecki should be deceived into believing that someone else was paying for the services. Moreover, the dissent conveniently ignores that not only did Donald not object to this approach, he affirmatively endorsed it, stating, “I agree with Ms. Morrissey that there is no need, necessarily, to show our client every check that goes out for every reason,” and that he approved a system under which the “only finances that [his] client deals with” would be when she and Mr. Muster “sit down together and they go over the rent owed, the telephone bill, the electric bill, and checks are written out [which she signs].”

Furthermore, the court appointed Mr. Muster coguardian and the coguardianship order did not prohibit either him or Ms. Morrissey from answering any questions posed by Dr. Dworecki as to how her monies were being spent or direct them to hide anything from her. In fact, the order directed the co-guardians to “exhibit the utmost degree of trust, loyalty and fidelity in relation to Dr. Dworecki” and provided that Ms. Morrissey “shall not restrict access to her financial advisor or attorneys of record.” While the dissent is of the opinion that the coguardianship order deprived Dr. Dworecki of any control over her life, it expressly directed the coguardians to “afford Dr. Dworecki the greatest amount of independence and self determination with respect to her personal needs in light of her functional level, understanding and appreciation of her functional limitation, and personal wishes, preferences and desires with regard to managing the activities of daily living.”

The dissent states that no sanctions or costs should be awarded with respect to motion seq. No. 4 because the order to show cause was not signed. However, at the hearing the Citaks’ counsel argued the opposite, asking that the sanctions be limited to that filing. Furthermore, the order to show cause was reviewed by the court and monetary sanctions may be imposed based on the false statements therein.

Nor do we agree with the dissent that sanctions are ill advised as a matter of policy, or that we are extending the law of sanctions “beyond any existing precedent to the point where it will dangerously chill zealous advocacy and impair the independence of the trial bar.” Donald is not being held financially accountable because his client “refused to be pushed any more” and he is not being punished for trying to protect his client’s interests. Rather, it is the numerous material misrepresentations by Donald in his applications to stay the entry of the coguardianship order and to dismiss the proceeding, and the disrespect directed at the court, which challenged the integrity of the judicial process, that constitute frivolous conduct under 22 NYCRR 130-1.1, justifying an award of sanctions (see Shields v Carbone, 99 AD3d 1100, 1103 [3d Dept 2012] [affidavit accused the court of rendering decisions for political or financial reasons, willfully disobeying the law, and either committing crimes or condoning the commission of crimes by other public officials]; Matter of Kyle v Lebovits, 17 Misc 3d 1124[A], 2007 NY Slip Op 52132[U] [Sup Ct, NY County 2007] [sanctions imposed where the petitioners made very serious and disturbing allegations that Judge Lebovits, acting in concert with Judge Wendt, coerced an unfair settlement of the attorney fee issue], appeal dismissed in part 58 AD3d 521 [1st Dept 2009], lv dismissed in part and denied in part 13 NY3d 765 [2009], cert denied 559 US 938 [2010]).

Contrary to the position of the dissent, these material false representations are not “understandable” and should not be excused based on a lawyer’s obligation to zealously represent his client. Rule 3.1 (b) (3) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that conduct is frivolous if “the lawyer knowingly asserts material factual statements that are false.” Rule 3.3 (a) (1) provides a lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Rule 3.3 (f) (2) provides that a lawyer appearing before a tribunal shall not “engage in undignified or discourteous conduct.” Here, Donald’s affirmations are replete with outrageous, overblown and insulting comments about the court and Ms. Morrissey that were disproved by the record and lack any good faith basis. That the court may have erred in accepting Donald’s consent on behalf of his client without confirming in person her capacity to consent and her agreement to all terms, does not excuses Donald’s frivolous conduct.

This Court’s recent decision in Matter of Russo v New York City Hous. Auth. (128 AD3d 570 [1st Dept 2015]), on which the dissent relies, does not mandate a different result. In Russo, we were not asked to review whether the trial court had clearly abused its discretion in imposing sanctions for frivolous conduct. Rather, we considered a request by the petitioner, to this Court, to impose sanctions on the Housing Authority for its “criticisms of the court” in its appellate brief. Although this Court found in the exercise of its discretion that counsel’s criticisms did not warrant the imposition of sanctions, as set forth above, here we are dealing with more than critical comments. In asserting that the court had ridden roughshod over Dr. Dworecki’s rights and had committed a “fraud” against her, Donald misrepresented his active participation in structuring the temporary guardianship in collaboration with the court, which carefully considered Dr. Dworecki’s desires and opinions in designing a guardianship to best meet her needs. Unlike Llantin v Doe (30 AD3d 292, 293 [1st Dept 2006]), where we reversed the imposition of sanctions for “ ‘frivolous conduct,’ i.e., ‘the disingenuous statement of readiness for trial,’ ” here, the record shows that Donald intentionally made the false misrepresentations in his applications, including his claim that he never agreed to any limitations to Mr. Muster’s powers as a co-guardian or to the procedure adopted by the court, and that he acted in bad faith.

Although monetary sanctions against Donald are warranted, the $7,500 monetary sanction against Burton is vacated. While Burton was clearly involved in the representation of Dr. Dworecki, he did not submit an affirmation, or argue in court in connection with the motions at issue (see AQ Asset Mgt., LLC v Levine, 119 AD3d 457, 464 [1st Dept 2014]). Given these circumstances, the imposition of one sanction of $7,500 against Donald is appropriate.

The imposition of costs, including attorneys’ fees, is also warranted under the circumstances to the extent that additional services were required and performed as the direct result of the frivolous conduct (22 NYCRR 130-1.1 [a]). However, the court failed to set forth in a written decision “the reasons why the court found the amount awarded or imposed to be appropriate” (22 NYCRR 130-1.2). Accordingly, the award of costs is vacated, and the matter remitted to Supreme Court for compliance with 22 NYCRR 130-1.2 (see Fraccola v 1st Choice Realty, Inc., 124 AD3d 1360 [4th Dept 2015]), including an explanation of why the amounts awarded to each recipient are related to the sanctionable conduct and appropriate, and for the entry of a judgment (see Weisburst v Dreifus, 89 AD3d 536 [1st Dept 2011]). In this regard, we note that, among other things, only one attorney filed papers in opposition to Citak & Citak’s motions; the order to show cause for motion seq. No. 4 was not signed and therefore did not have to be opposed, and Dr. Dworecki’s new counsel, Ms. Berman, was not counsel of record until after the court rendered its May 1, 2013 order finding frivolous conduct, but was nevertheless awarded $6,280. Pursuant to 22 NYCRR 130-1.1 (b) the costs should be imposed against Donald individually, or Citak & Citak, as the court deems appropriate.

Lastly, we modify to grant the Citaks’ application for attorneys’ fees incurred in connection with their representation of Dr. Dworecki, only up to, but excluding, their preparation and filing of the frivolous motions, and deny all legal fees incurred in connection with those motions, including the related sanctions hearing and this appeal.

Accordingly, the order of the Supreme Court, New York County (Laura Visitacion-Lewis, J.), entered on or about May 1, 2013, and the order of the same court and Justice, entered July 30, 2013, which, insofar as appealed from as limited by the briefs, imposed sanctions upon nonparty attorneys Burton Citak and Donald L. Citak, individually, in the sum of $7,500 each, and imposed $12,639.18 in attorneys’ fees, $12,314 in costs for extraordinary guardianship services, and $687.50 in costs for additional court evaluator services against the Citaks jointly, and denied legal fees to the Citaks in this matter, should be modified, on the law, the facts, and in the exercise of discretion, to vacate the award of $7,500 sanctions against Burton Citak, Esq., to vacate the award of attorney’s fees, costs for extraordinary guardianship services, and additional court evaluator services, and to remand for compliance with 22 NYCRR 130-1.2, and to vacate the denial of Citak & Citak’s request for attorney’s fees and to remand for a determination of the reasonable fees owed Citak & Citak by its client consistent with this opinion, and otherwise affirmed, without costs.

1 . At the end of the hearing, it was agreed that the interim special guardian would draft the order instead.

2 . Although, another treating physician felt that a guardian was not needed, she noted that Dr. Dworecki was receiving treatment for medical conditions including severe osteoarthritis, gait abnormality, hypertension, hypercholesterolemia, hypothyroidism and cataract. She also acknowledged that Dr. Dworecki had short term memory loss and would benefit from home care to assist her in personal hygiene and insuring that her medication is taken as directed. The physician, however, did not describe any of the conditions she observed during her personal visits to Dr. Dworecki’s home.

3 . The dissent also states that “there is no statutory authorization for the type of alternative form of guardianship contemplated by the court, for those who have neither been found incapacitated nor have personally, unequivocally consented to the guardianship and its terms.” However, Mental Hygiene Law § 81.23 (a) (1) provides that

“[a]t the commencement of the proceeding or at any subsequent stage of the proceeding prior to the appointment of a guardian, the court may, upon showing of danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person, appoint a temporary guardian for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article.”

4 . This, among other things, distinguishes this matter from my dissent in DeRosa v Chase Manhattan, where “plaintiff’s counsel’s assertion that he acted in good faith [was] uncontradicted” (15 AD3d at 251). In contrast, here Donald’s counsel acknowledged that many of his actions were unjustified.