IN THE MATTER OF TOPA, 6030 (2005)

2005 NY Slip Op 25465

IN THE MATTER OF THE APPLICATION OF CONSTANCE TOPA for the Appointment of

a Guardian of JOHN TOPA, An Incapacitated Person.

6030/04.

Supreme Court of the State of New York, Queens County.

Decided November 1, 2005.

  CHARLES J. THOMAS, J.

  Petitioner commenced a guardianship proceeding pursuant to
Article 81 for the appointment of a guardian for John Topa, an
allegedly incapacitated person. The petition, while seemingly
routine, is anything but.

  Petitioner alleges in her petition that her father, the alleged
incapacitated person, is not at all incapacitated; rather, she
contends that he is competent to care for both his physical and
financial needs. Petitioner commenced this guardianship
proceeding at the insistence of Holliswood Nursing Home when the
administrator of Holliswood refused to honor the alleged
incapacitated person's health care proxy and refused to allow the
alleged incapacitated person to leave the facility and return
home.

  John Topa entered Holliswood Nursing Home on October 27, 2005,
having been transferred there from Long Island Jewish Hospital.
Mr. Topa, who is 94 years old, had been admitted to the hospital
for treatment of a wound he received while his daughter was
trying to get him into bed. Long Island Jewish Hospital sent Mr.
Topa to Holliswood Nursing Home under the guise that he would
benefit from rehabilitation. After several days at Holliswood,
Mr. Topa received some physical therapy but it was stopped when
his insurance company would not pay. When the physical therapy
was stopped, Petitioner asked to have her father discharged. The
administration of Holliswood told Petitioner that they would not
discharge Mr. Topa because they believed he was incompetent.

  Ms. Topa advised the staff at the nursing home that she was her
father's health care agent and repeatedly requested that he be
released. In response, the staff at Holliswood took Mr. Topa's
coat, hat and gloves and attached tracking device to him to
prevent him from leaving the premises.

  When the hospital continued to refuse to allow Mr. Topa to
leave, Petitioner sought legal advice regarding her father's
rights to leave the facility. In November, 2004 Mr. Topa retained
the services of the same law firm to attempt to assist him in
signing himself out. However, the hospital refused to allow him
to leave even upon Mr. Topa's agreeing to signing himself out
against medical advice.

  Ms. Topa then hired Sherry Zabko-McGuire, geriatric care
manager, to assist in setting up a discharge plan for her father.
Ms. Zabko-McGuire evaluated Mr. Topa on January 16, 2005 and he
scored a total of 29 out of 30 points on the Folstein Mini Mental
Exam. The evaluation by Sherry Zabko-McGuire further determined
that Mr. Topa had a high level of capacity and function.

  Mr. Topa advised Ms. Zabko-McGuire that he wanted to go home
with his daughter, Connie. Ms. Zabko-McGuire evaluated Mr. Topa's
home environment and found it safe, clean and comfortable and
appropriately equipped for him to be discharged. However, the
nursing home refused to cooperate with Ms. Zabko-McGuire and she
had to leave the facility.

  During the months Mr. Topa was at Holliswood, the staff
repeatedly refused to allow his daughter to take him home even
for a brief visit during the holidays. On January 13th, 2005,
Holliswood applied for Medicaid on behalf of Mr. Topa so they
could get paid for his room and board.

  In February 2005, the nursing home insisted that Constance Topa
commence a guardianship action if she wanted to have her father
discharged or to see any of his medical records. She eventually
did so and filed the instant proceeding.

  Upon signing the Order to Show Cause, the court appointed
Richard Spivack, Esq. as Temporary Guardian. Upon his
appointment, Mr. Spivack reviewed the petition and supporting
papers. On February 2, 2005 Mr. Spivack went to Holliswood where
he met with Mr. Topa's attorneys, and Ms. Topa, as well as
members of Holliswood's staff. After verifying Mr. Spivack's
appointment as Temporary Guardian, Mr. Spivack was allowed to
speak privately with Mr. Topa for approximately 20 minutes. Mr.
Spivack found him competent and lucid and Mr. Topa told him that
he wanted desperately to go home. He further related that he was
"so lonely", he had no one to talk to, no television, and no
telephone, and he was required to eat most of his meals in his
room alone. Mr. Spivack inquired of the staff why Mr. Topa was
being kept in the facility and he was advised by the manager of
the facility and another member of the staff that there were
unspecified medical reasons for doing so. Eventually Mr. Spivack
was advised that Mr. Topa wasn't being discharged because New
York City Adult Protective Services had started an investigation
of the injury that Mr. Topa had received. However, Mr. Spivack
was advised that there would not be any final reports relating to
that investigation. The staff also insisted that Mr. Topa's
evaluation was a 22 with 23 being the minimum. Mr. Spivack was
not allowed to see the entire medical chart, only those portions
selected by Holliswood.

  Mr. Spivack then told the administrators of Holliswood that he
was taking Mr. Topa home, at which time Mr. Spivak was told that
this was against medical advice. Mr. Spivack then inquired as to
what was the medical advice for keeping him in the facility. A
staff member told him he would have to inquire of Dr. Surinder
Ahiya, the medical doctor on staff. Mr. Spivack spoke personally
to Dr. Ahiya, who admitted that there was no medical reason to
keep him at the facility but that they believed that, based upon
an Adult Protective Services complaint, he was never going to be
discharged.

  Mr. Spivack contacted Miss Flynn, another geriatric evaluator,
who indicated similar findings as Ms. Zabko-McGuire. Mr. Spivack
arranged for a home health attendant with Partners in Care. Upon
doing so, Mr. Spivack signed Mr. Topa out against medical advise
and took him home. Mr. Spivack verified with Adult Protective
Services that there was no ongoing investigation and the nursing
home never followed up with any investigation or did any inquiry
in terms of a discharge plan.

  Petitioner's position that Mr. Topa is competent and the
testimony by Petitioner Constance Topa and the Temporary Guardian
confirms what this court determines from Mr. Topa's own
testimony. Mr. Topa is a competent healthy 94 year old who has
good mental faculties and is in reasonably good physical health,
given his age. As such, the court finds that Petitioner does not
need a guardian and that Mr. Topa is sufficiently competent to
have executed the previously mentioned valid advance directions.

  Petitioner requests that, due to the extraordinary
circumstances, the costs of this proceeding be paid by the
Holliswood Nursing Home and that sanctions be imposed on
Holliswood for their actions.Holliswood, in its post hearing
memorandum of law, objects to the imposition of fees and
sanctions, claiming that the court lacks jurisdiction over them
and that the court does not have the authority to direct a third
party to pay costs and fees in an Article 81 proceeding.

  Article 81 provides for reasonable compensation for the
attorney for the petitioner and the special guardian when the
court deems it appropriate even if the petition appointing a
guardian is not granted. Section 81.16 provides as follows:

  "(a) Dismissal of the Petition.

  If the person alleged to be incapacitated under this
  article is found not to be incapacitated, the court
  shall dismiss the petition.

  (f) When a petition is granted, or where the court
  otherwise deems it appropriate, the court may award
  reasonable compensation for the attorney for the
  petition . . ." (Emphasis added)

  Initially, the court determines that it has jurisdiction over
Holliswood. As the nursing home where Mr. Topa was being held,
Holliswood is a necessary party and accordingly was served with
the Order to Show Cause and the Petition in this case. The
Petition appointed a Temporary Guardian, and directed Holliswood
to release Mr. Topa. The fact that Mr. Spivak was able to secure
Mr. Topa's eventual release does not divest this court of its
jurisdiction over Holliswood for the purpose of the relief
requested.

  In addition to the court's authority under Article 81 the court
is empowered to assess legal fees when litigation creates a
benefit to another or when an opposing party's malicious acts
cause another to incur the fees. Harradine v. The Board of
Supervisors of Orleans County, 73 AD2d 118, provided that the
fees should be "proximately related to the acts themselves . . .
[and] entirely motivated by a disinterested malevolence." 73
AD2nd 118.

  Holliswood's actions in this case created a benefit for itself.
By refusing to release Mr. Topa, it hoped to receive money for
Mr. Topa's extended stay, it fulfilled its desire to fill an
empty bed and it avoided incurring expenses for the Guardianship
action.

  Holliswood is fully aware of its responsibility to commence a
guardianship action where there is a good faith belief that it is
unsafe to discharge a resident. It chose instead to do nothing.
Assuming any validity to Holliswood's position that its refusal
to honor the health care proxy was due to its concern regarding
Adult Protective Services's questions regarding a safe discharge,
it would have been incumbent on Holliswood themselves to commence
a guardianship proceeding if it had questions regarding the proxy
or the discharge plan presented by the health care agent. In such
event, Holliswood would have, upon dismissal, borne the cost of
the proceeding, including the legal fees incurred as petitioner
in the action.

  The only reason that would explain Holliswood's inaction is
that, knowing Mr. Topa was competent and that the Petition would
eventually be dismissed, it felt that the court would not award
attorneys fees[fn1] and that it would be left to foot the
bill for the proceedings. The Court finds that Holliswood's
reprehensible actions violated the most fundamental rights of Mr.
Topa, and offend the consciousness of this court.

  Holliswood can not obviate its legal and financial obligation
by choosing instead a course of action which required Mr. Topa's
daughter to commence the petition in order to free her father
from their unlawful custody. The obligation to pay attorneys fees
must be imposed on Holliswood.

  Furthermore, the court can not consider or give credence to the
numerous letters attached to Holliswood's post-hearing
memorandum, as they are hearsay correspondence and can not be
directly attributed to Mr. Topa. The record is clear that
Holliswood was served with the Petition and the action was
adjourned with notice to Holliswood for the specific purpose of
allowing it the opportunity to present testimony, evidence or
argument to the court. Holliswood chose not to appear and as such
has waived its objections to Petitioner's applications.

  Petitioner's request for sanctions under CPLR 8303 and is
denied in light of the above. It is sufficient that Holliswood
bear the costs incurred in connection with the Petition. Were it
not to do so, the court would have unhesitatingly considered
awarding at least a like amount as sanctions for Holliswood's
action.

  Submit order in accordance herewith.

[fn1] In the Matter of Sylvia Gaskell, NYLJ., March 1, 1994, p.
27, col. 12 (Sup.Ct. Suffolk Co.) the court found that where a
nursing home needlessly put a family through a guardianship
proceeding the nursing home could not recover its fees.