Opinion
850023-I-2021
05-06-2021
In the MATTER OF the Application of Nancy NUNZIATA., Commissioner of the Nassau County Department of Social Services, Petitioner, for the Appointment of a Guardian of Nancy K., an Alleged Incapacitated Person, Respondent, William McEnaney, Cross-Petitioner
Counsel for Petitioner: Nancy Nunziata, Commissioner of the Nassau County Department of Social Services, David Zachary Carl, Esq., Firm Name: Nassau County Department of Social Services, Address: 60 Charles Lindbergh Blvd Ste 160, Uniondale, NY 11553, Phone: (516) 227-8561, E-mail: David.carl2@hhsnassaucountyny.us. Court Appointed Counsel for Nancy K., Alleged Incapacitated Person, Elisa Strassler Rosenthal, Esq., Firm Name: Rosenthal Law LLC, Address: 1050 Franklin Ave Ste 302, Garden City, NY 11530, Phone: (516) 361-6606, E-mail:ERosenthal@elderlawflg.com. Court Appointed Trial Counsel for Nancy K., Alleged Incapacitated Person, Brian R. Heitner, Esq. Firm Name: SELTZER SUSSMAN HABERMANN & HEITNER LLP, Address: 100 Jericho Quad Suite 226, Jericho, NY 11753, Phone: 516-935-3600 Fax: 516-933-3030, E-mail: Bheitner@sshlaw.com. Court Evaluator, Edward Francis Cunningham, Esq., Firm Name: EDWARD F. CUNNINGHAM, ESQ., Address: 62 Cambridge Ave, Garden City, NY 11530, Phone: (516) 328-3705, E-mail: Ed@edcunninghamlaw.com. Temporary Guardian, Lloyd Jeffrey Weinstein, Esq., Firm Name: THE WEINSTEIN GROUP, P.C., Address: 6800 Jericho Tpke Ste 112w, Syosset, NY 11791, Phone: (516) 802-5330, E-mail: ljw@theweinsteingroup.net. Counsel for the Cross-Petitioner, Donald Novick, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: DNovick@novicklawgroup.com. Counsel for the Cross-Petitioner, Kimberly Arlen Schechter, Esq., Firm Name: Novick & Associates, P.C. Address: 202 East Main Street, Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: KSchechter@novicklawgroup.com. Counsel for the Cross-Petitioner, Albert Vincent Messina, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 6315470300 Fax: 631-547-0212, E-mail: AMessina@novicklawgroup.com.
Counsel for Petitioner: Nancy Nunziata, Commissioner of the Nassau County Department of Social Services, David Zachary Carl, Esq., Firm Name: Nassau County Department of Social Services, Address: 60 Charles Lindbergh Blvd Ste 160, Uniondale, NY 11553, Phone: (516) 227-8561, E-mail: David.carl2@hhsnassaucountyny.us.
Court Appointed Counsel for Nancy K., Alleged Incapacitated Person, Elisa Strassler Rosenthal, Esq., Firm Name: Rosenthal Law LLC, Address: 1050 Franklin Ave Ste 302, Garden City, NY 11530, Phone: (516) 361-6606, E-mail:ERosenthal@elderlawflg.com.
Court Appointed Trial Counsel for Nancy K., Alleged Incapacitated Person, Brian R. Heitner, Esq. Firm Name: SELTZER SUSSMAN HABERMANN & HEITNER LLP, Address: 100 Jericho Quad Suite 226, Jericho, NY 11753, Phone: 516-935-3600 Fax: 516-933-3030, E-mail: Bheitner@sshlaw.com.
Court Evaluator, Edward Francis Cunningham, Esq., Firm Name: EDWARD F. CUNNINGHAM, ESQ., Address: 62 Cambridge Ave, Garden City, NY 11530, Phone: (516) 328-3705, E-mail: Ed@edcunninghamlaw.com.
Temporary Guardian, Lloyd Jeffrey Weinstein, Esq., Firm Name: THE WEINSTEIN GROUP, P.C., Address: 6800 Jericho Tpke Ste 112w, Syosset, NY 11791, Phone: (516) 802-5330, E-mail: ljw@theweinsteingroup.net.
Counsel for the Cross-Petitioner, Donald Novick, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: DNovick@novicklawgroup.com.
Counsel for the Cross-Petitioner, Kimberly Arlen Schechter, Esq., Firm Name: Novick & Associates, P.C. Address: 202 East Main Street, Suite 208, Huntington, NY 11743, Phone: 631-547-0300 Fax: 631-547-0212, E-mail: KSchechter@novicklawgroup.com.
Counsel for the Cross-Petitioner, Albert Vincent Messina, Esq., Firm Name: NOVICK & ASSOCIATES, P.C., Address: 202 E. Main Street Suite 208, Huntington, NY 11743, Phone: 6315470300 Fax: 631-547-0212, E-mail: AMessina@novicklawgroup.com.
Gary F. Knobel, J.
The following papers have been considered on this motion:
Notice of Motion/Order to Show Cause 1
Cross Motion/Answering Affidavits 2
Reply 3
The Order of the Court dated April 27, 2021 is hereby amended to clarify the last paragraph of the April 27, 2021 Order.
Upon the foregoing papers, the motion by the petitioner pursuant to CPLR 2304 for an order quashing the subpoena ad testificandum served and directed at the named petitioner, Nancy Nunziata, LMSW Commissioner of the Nassau County Department of Social Services, is granted.
This proceeding, commenced by the Commissioner of the Nassau County Department of Social Services pursuant to Article 81 of the Mental Hygiene Law, seeks a judgment appointing an independent guardian for the personal needs and property management of the alleged incapacitated person, Nancy K. ("AIP"). The petition seeks to set aside and void the advanced directives executed on October 8, 2019, and to void the marriage entered into on November 8, 2020, between the AIP and the cross-petitioner, William McEnaney. By order dated April 15, 2021, the undersigned deemed the Health Care Proxy dated October 8, 2019 void.
The cross-petition seeks an order dismissing the petition and permitting the cross-petitioner to care for the AIP using the advanced directives put in place in 2019. The cross-petitioner alternatively seeks, if the court determines that an independent person should be appointed the guardian of the person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed as permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP.
Petitioner's counsel moves pursuant to CPLR 2304 to quash the subpoena ad testificandum which demands that Commissioner Nunziata testify "on the part of William McEnaney". Petitioner's attorney argues that the subpoena is speculative and fails to properly demonstrate that the testimony of Commissioner Nunziata is relevant as to whether the AIP is incapacitated. Counsel further argues that the mere execution of a verification page, in support of a petition, averred "upon information and belief" does not mean in this instance that acting on behalf of a governmental agency has personal knowledge about Nancy K.’s alleged incapacity.
In response, cross-petitioner's attorney maintains that Commissioner Nunziata swore that the certain allegations in the amended petition were true to her knowledge and not based upon information and belief and that counsel should be permitted to inquire whether this Article 81 proceeding was brought in retaliation for cross-petitioner's complaint against Adult Protective Services (APS) for continued harassments of him and the AIP.
"An application to quash a subpoena should be granted ‘[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ ... or where the information sought is ‘utterly irrelevant to any proper inquiry’ " ( Anheuser-Busch, Inc. v Abrams , 71 NY2d 327, 331-332 [1988], citing Matter of Edge Ho Holding Corp. , 256 NY 374, 382 [1931] and Matter of La Belle Creole Intl., S.A. v Attorney-General of State of NY , 10 NY2d 192, 196 [1961], quoting Matter of Dairymen's League Coop. Assn., Inc. v Murtagh , 274 App Div 591, 595 [1948], affd 299 NY 634 [1949] ). It is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated under such circumstances (see Matter of Dairymen's League Coop. Assn. , 274 App Div at 595-596 ; see also Ledonne v Orsid Realty Corp. , 83 AD3d 598, 599 [1st Dept 2011] )."
Kapon v. Koch , 23 NY3d 32, 38—39, 11 N.E.3d 709 (2014)
CPLR 3020(a), titled Verification, states as follows:
Generally. A verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes it to be true. Unless otherwise specified by law, where a pleading is verified, each subsequent pleading shall also be verified, except the answer of an infant and except as to matter in the pleading concerning which the party would be privileged from testifying as a witness.
The amended petition in this proceeding states: "[t]he Petition of NANCY NUNZIATA, LMSW., Commissioner of the Nassau County Department of Social Services (DSS), respectfully alleges, "UPON INFORMATION AND BELIEF ...". Although Commissioner Nunziata signed the verification, in her attached affidavit, Commissioner Nunziata states that she "personally sign[s] verification pages in support of every petition, filed by Adult Protective Services, because of [her] status as the Commissioner of the Nassau County Department of Social Services." (See, Nunziata Affidavit, ¶3) In support of petitioner's motion to quash, Commissioner Nunziata, submits an affidavit in which she attests that she "do[es] not have personal knowledge about the factual circumstances regarding the Nancy [K.] Matter." (see , Nunziata Affidavit, ¶4). DSS Caseworker Shirley Rembert and DSS/APS Case Supervisor Muriel Jeanty, who both previously testified at the trial, aver that they are personally familiar with the factual circumstances regarding this guardianship proceeding and personally communicated with Nancy K. and William McEnaney, and that Commissioner Nunziata did not have personal involvement regarding the investigation and any resulting determination.
The Court notes that cross-petitioner's attorney's contention that the Commissioner's testimony is necessary, based upon cross-petitioner's contention that the Article 81 proceeding was brought in retaliation for his complaint against APS, is not supported by the allegations in the cross-petition. In paragraph 29 of the cross-petition, the cross-petitioner alleges that "[he has] been treated like a criminal by the Departments of Social Services and Adult Protective Services because of unfounded and untrue accusations made by individuals who have had little to no contact with Nancy." The cross-petition is devoid of allegations of retaliation toward the cross-petitioner by the Department of Social Services and Adult Protective Services
Accordingly, it is hereby
ORDERED , that the petitioner's motion pursuant to CPLR 2304, to quash the subpoena ad testifcandum demanding the testimony of Nancy Nunziata, LMSW, Commissioner of the Nassau County Department of Social Services and the production of the file regarding Nancy K., is granted . (see, Hughson v. St. Francis Hosp. of Port Jervis , 96 AD2d 829, 830, 465 N.Y.S.2d 578 [1983] ; see also , Dwyer v. State, 158 AD2d 660, 661, 552 N.Y.S.2d 38 [1990] )
The foregoing constitutes the decision and order of this Court.