This article will endeavor to detail the seven year odyssey of a contested guardianship proceeding in the Matter of Samuel S.   Many guardianship proceedings are extremely contested; however, this case was the most contentious in my career.  It involved three Supreme Court proceedings (habeas corpus, guardianship and a plenary action) and two appeals.  The latter appeal was consolidated with various other decisions in the plenary action.


Prior to the commencement of the Article 81 proceeding, the Petitioner, Simon S., commenced a habeas corpus proceeding wherein he sought authority to visit his brother Samuel S. (who was residing with his sister Helene S.) at her Brooklyn home.  The habeas proceeding concluded with a stipulated Order permitting Simon S. to visit Samuel S. and for the appointed referee to be Court Evaluator in the guardianship proceeding to be initiated by Simon S.

The Petitioner, Simon S., sought to be appointed guardian for his brother Samuel S. alleging Samuel S. was an incapacitated person, that Helene S. was not providing adequate care, was depriving Samuel S. of his ability to practice his religion and alleged financial improprieties on the part of Helene S., in particular, two parcels of real property located in Brooklyn in which Samuel S. transferred his interest to Helene S. five years prior to the proceeding.

I was retained by Helene S. and on her behalf I filed a cross-petition seeking the dismissal of the guardianship petition since Samuel S. had resources in place (i.e. Power of Attorney and Health Care Proxy in favor of Helene S.) and implementation of twenty-four hour, seven day per week home care for Samuel S. in Helene S.’s home which, in effect, was converted to a hospital ward.  Samuel S.’s room was set up with a big screen television which had Skype capabilities for Samuel S. to speak (and view) siblings from other locations (Upstate New York, New Jersey and Israel).  In the alternative, I plead that should the Court determine a guardian was necessary that Helene S. be appointed.  I included in the cross-petition that the Power of Attorney purportedly prepared and executed by Samuel S. should be voided pursuant to MHL 81.29.  The final aspect of the cross-petition was that Samuel S. had available resources as set forth in MHL 81.03 in that he had executed a Power of Attorney and Health Care Proxy six years prior to the commencement of these proceedings.

Finally, there was a request for relief regarding the assessment of the fees of the proceeding to be charged to the Petitioner based upon the guardianship case being filed in bad faith.

The hearing was inordinately protracted.  The Court Evaluator requested an independent medical assessment be ordered since it would assist the Court in determining the issues since the Petitioner disclosed, after filing the petition, that he had secured a Power of Attorney document purportedly executed by Samuel S. during the visits under the habeas corpus so ordered stipulation.


The hearing commenced after a two month delay so that the Court appointed doctor could conduct his evaluation, issue a report and ultimately testify.  The doctor’s testimony was quite persuasive as his findings were unequivocal that Samuel S. was incapacitated and needed a guardian.  The doctor also testified that the Power of Attorney document procured by Simon S. from Samuel S. should be voided due to Samuel S. not possessing sufficient capacity to have understood the significance of the that document at the time it was executed.

The Court Evaluator testified next and set forth, in great detail, how Helene S. had dedicated herself to caring for her brother Samuel S. including the modifications that were made to Helene S.’s home wherein she created a hospital ward in her home to take care of her brother.

The other significant information that came from the Court Evaluator’s testimony was that there was no evidence of financial improprieties by Helene S. involving any of Samuel S.’s assets or real property.

Much of the remainder of this eight-month proceeding can only be characterized as circus-like since the Petitioner, using a combination of dilatory tactics and outright misrepresentations, caused the hearing to be in a quagmire.  For example, the Petitioner brought in a parade of family members (i.e. nieces and nephews) to testify about the closeness of the relationship between Simon S. and Samuel S; he would bring in an expert to testify in the afternoon sessions and conclude his direct examination leaving me ten or fifteen minutes to cross examine his expert witness, then complain that he had to bring in the witnesses for further testimony.  The Petitioner was repeatedly admonished about his tactics but these admonishments proved fruitless.

Incredibly, none of the Petitioner’s expert witnesses fully testified or returned for their cross examinations.  Their direct testimony was ultimately stricken.

The Court did conduct a home visit of Samuel S. since his condition precluded him from being present for the proceedings.  The Court saw firsthand what the Court Evaluator testified to regarding the condition and accommodations for the benefit of Samuel S.

Ultimately, the Court imposed a schedule of hearing dates for the Petitioner to produce his remaining witnesses and produce the experts to conclude the cross examination.  Amazingly, the Petitioner ignored this schedule and endeavored to put forth more “my dog ate my homework” type excuses for the non-production of witnesses.

I moved several times for the Court to deem the Petitioner’s case closed for non-production of witnesses and to preclude and strike the expert witness testimony for failure to be produced for cross examination.

The Court ultimately granted these motions.

I instantly moved to dismiss the petition since the Petitioner failed to make a prima facie case.  This motion was also granted.

I immediately requested that I be permitted to withdraw my cross petition since the resources that were in place for Samuel S. (twenty four/seven home care, Power of Attorney and Health Care Proxy) met his needs and no guardian need be appointed.  The Court granted this request.


Not surprisingly, the Petitioner appealed this decision.  The Petitioner endeavored to allege that the trial court and Court Evaluator were biased since I was a former Court employee and the Judge, whom I previously worked for as a Principal Law Clerk, had appointed the Court Evaluator several times during the term of my employ.  The Petitioner also claimed that the guardianship hearing was not conducted properly and that the Court erred in assessing the Court awarded fee against him without a hearing about the fees.


In the spirit of brevity, I will not elaborate on the Court’s decision and order.  However, it is available to be read in its entirety — Matter of Samuel S. (Helene S.), 96 AD 3d 954 (Second Dept. 2012).

The Appellate Court affirmed all of the lower Court’s findings except for the fees assessed against the Petitioner.  That issue was remanded for a hearing to determine the amount of the fees and to give the Petitioner the opportunity to oppose the fee request.


The guardianship court conducted a hearing on the fees awarded to the Court Evaluator and, not surprisingly, the Petitioner filed opposition papers to the fee request.  The hearing resulted in the Petitioner being required to pay the Court Evaluator’s fee; however, the fee was reduced to $17,500.00.


The plenary action filed was titled Simon Schwarz and Samuel Schwarz, Plaintiffs v. Helene Schwarz and Jack Kartaginer (Helene’s husband).  The graver man of this action were allegations that the defendants had converted and/or misappropriated funds of Samuel S. and that two parcels of real property located in Brooklyn were transferred by Samuel S. to Helen S. by fraud, undue influence and/or coercion.

Upon receipt of this complaint, I immediately made a motion to dismiss this complaint on res judicata and collateral estoppel grounds.  The case was assigned to a randomly selected Judge upon filing the Request for Judicial Intervention with the motion.  On the return date, I argued that the case should be returned to the guardianship Judge since that Judge had knowledge of the prior proceeding and it would serve judicial economy.  My motion was granted and the matter was returned to the guardianship Judge.

After oral argument, the Court issued a well-reasoned and detailed, eighteen page decision and order granting the motion to dismiss the complaint.  This decision also granted the relief that the Plaintiff, Simon Schwarz, was to pay defendant’s legal fees and was sanctioned for filing a frivolous proceeding.  The decision set down a date for a hearing for the purpose of determining the fees and sanctions.

After a contentious hearing, I was awarded a fee of $20,800.00 for my services to be assessed against Simon S. and he was sanctioned $5,000.00 which was to be paid to the Lawyers Fund for Client Protection.

This decision set off a flurry of motion practice by Simon S.  The first motion sought the recusal of the trial court/guardianship Judge from handling the proceedings.  Understandably, this motion was denied.  The next motion sought to renew and reargue the Court’s original determination dismissing the complaint.  The basis of this motion was that the transfer of the case to the guardianship Judge was improper, violated Court rules and accused me of Judge shopping.  It also argued that the original dismissal decision was incorrectly decided since the Court purportedly did not consider two volumes of exhibits the Petitioner allegedly filed in the courtroom on the return date of the dismissal motion.

The motion further argued that the fee award and sanctions should be vacated since I did not adequately detail my time records nor did I keep contemporaneous records of my time.

The Court denied these motions.


The filing of a Notice of Appeal on all the decision, in a staggered basis, after the decisions were issued resulted in the Appellate Division granting an extension of the time to perfect the appeal.  Adding to the meandering timetable was the death of Samuel Schwarz.   This resulted in a stay of the appeal until an estate representative was appointed by the Surrogate’s Court.  This process took time since other siblings were angry at Simon for the protracted litigation he brought against Helene.  Ultimately, Simon was granted Limited Letters of Administration to promulgate the appeal in the plenary action.

Motions were required for the restoration of the appeals to the calendar and a schedule to perfect the appeal and for respondent’s brief were put forth.


The Appellate Division ruled on May 10, 2017 that all the lower Court determinations were affirmed – Schwarz v. Schwarz (2d Dept 2017).

The interesting aspect of this oral argument and the decision and order was the panel questioning both parties on MHL 81.29 which provides for the guardianship court to void documents (i.e. deeds, Powers of Attorney, Health Care Proxies, Trusts but not a Last Will and Testament) if it determines that the AIP did not have the capacity to execute the document.

It appears that since the initial guardianship petition contained allegations about the financial improprieties and they could not be proved in that proceeding nor could MHL 81.29 be utilized to void documents like a deed, the doctrines of collateral estoppel and res judicata apply.

Could the result have been different if the allegations were not plead with particularity in the guardianship petition or notice was not given to the person or entity that was now in possession of the property of the AIP?

I recommend contrasting the Schwarz matter with the reported cases of Matter of Loretta I, 34 AD 3d 480 (2d Dept 2006) and Matter of Johanna C., 34 AD 3d 465 (2nd Dept 2006).


The Appellant, having never taken the Court’s rebuke for the past seven years, did not stop at the Court’s decision and order.  A motion to reargue and for leave to file an appeal to the Court of Appeals was filed and, obviously, opposed by my client.

Thankfully, that motion was denied in its entirety which, I believe, is the final chapter of this seven year odyssey.