Opinion
21-CV-5488 (AT) (JLC)
12-13-2022
GENEVIEVE ZIETEK, Plaintiff, v. PINNACLE NURSING & REHAB CENTER, Defendant.
The Honorable Analisa Torres, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Genevieve Zietek (“Zietek”), who is proceeding pro se, has brought this action against Pinnacle Nursing & Rehab Center (“Pinnacle”), raising what the Court has construed to be claims arising under the Nursing Home Reform Act, 42 U.S.C. § 1396r. This case has been referred to me to determine whether Zietek is competent to proceed with her lawsuit, or whether the Court needs to appoint a guardian ad litem under Rule 17(c) of the Federal Rules of Civil Procedure. For the reasons which follow, the Court recommends, following the hearing held on November 16, 2022, that Zietek be found competent to proceed with her lawsuit, and that Pinnacle be permitted to renew its motion to dismiss.
It is not clear whether a magistrate judge has the authority to rule on a litigant's competency, and thus I will address the issue by way of a report and recommendation. See, e.g., Mil'Chamot v. N.Y.C. Housing Authority, No. 15-CV-108 (PAE) (HBP), 2016 WL 7756626, at *1 n.1 (S.D.N.Y. Dec. 20, 2016) (citation omitted), adopted by 2017 WL 151626 (Jan. 12, 2017).
I. BACKGROUND
The Court first reviews the chronology of events leading up to the competency hearing that took place on November 16, 2022.
By order dated March 2, 2022 (Dkt. No. 42), the Honorable Analisa Torres denied Pinnacle's motion to dismiss Zietek's complaint without prejudice to renewal once it was determined whether she was competent to represent herself or whether she needed to proceed with the assistance of a guardian ad litem.
The issue of Zietek's competency arose when Pinnacle, as part of its motion papers, filed a copy of a state court order and judgment declaring Zietek to be an “incapacitated” person leading to the appointment of a guardian in the state court, and as a result of Zietek herself having filed an annual report submitted by her state court guardian, which stated, among other things, that Zietek suffered from various psychiatric disorders. Dkt. No. 42, at 2.
By the same order, Judge Torres referred the competency issue to me, and in turn, on March 4, 2022, I asked the parties to make submissions in advance of a potential hearing (Dkt. No. 44). In response, Pinnacle reported by letter dated March 18 (Dkt. No. 45) that Zietek had moved to another facility, the Schervier Rehabilitation and Nursing Center (“Schervier”), and thus it did not intend to take a position with respect to her competency since she was no longer in its charge. At the same time, Pinnacle reported that Zietek's previous guardian ad litem in state court - the Bronx Community Guardianship Network (“BCGN”) - had sought to extend the guardianship that had previously expired (and BCGN had obtained a temporary extension while the motion was pending and thus remained Zietek's acting guardian in state court).
Pinnacle asked for - and I granted - an adjournment of the competency hearing until the BCGN guardianship proceeding was decided, and I extended the date for the hearing several times (Dkt. Nos. 48, 49, 51, and 55). In the interim, Zietek filed several letters (Dkt. Nos. 46, 47, 52, 53, 56, and 57), raising various issues, including seeking a change of venue of her case from Manhattan to White Plains (Dkt. No. 57).
On August 9, 2022 (Dkt. No. 59), Pinnacle wrote the Court to advise that (1) the motion in state court to extend the guardianship had been adjourned without a new date; (2) Pinnacle did not take a position on Zietek's request to transfer the case to White Plains; and (3) the state court judge, on March 1, 2022, had extended Zietek's guardianship by BCGN and assigned her counsel as well.
Based on these developments, Pinnacle requested that this case be restored to active status and that it be permitted to renew its motion to dismiss “since plaintiff's interests will be protected by the aforementioned appointments” and further requested that the Court “recognize the appointment of guardian and counsel and move this matter forward toward potential resolution via the motion to dismiss.” Dkt. No. 59, at 1.
Because of Zietek's request to transfer and Pinnacle's desire to move the case forward, by order dated September 12, I scheduled a conference to be held on October 7 (Dkt. No. 61). By that same order, I denied Zietek's request to transfer, and, on September 19, Zietek appealed my decision to Judge Torres (Dkt. No. 62).
The Court subsequently held a telephone conference on October 7. Zietek did not attend that conference but her counsel in her state court litigation, Todd Fishlin, Esq. did. Counsel for Pinnacle also attended. At that conference, I scheduled a competency hearing for October 27. The Court entered an order as such and as part of that order, informed Zietek that if she did not appear, her case was at risk of being dismissed for failure to prosecute (Dkt. No. 66). On October 11, Judge Torres affirmed my decision that the case should remain in Manhattan (Dkt. No. 67).
On October 25, 2022, Zietek sent a letter by fax to Pinnacle's counsel requesting that he transmit it to the Court. The letter stated, among other things, that Zietek would not attend the conference, seeking to “stay” the hearing, and renewing her request to transfer the case to White Plains (Dkt. No. 69). The Court then entered an order reiterating its previous order and instructing Zietek to attend the October 27th conference, informing her that her attendance was not optional if she wished to move forward with her case (Dkt. No. 70).
The Court proceeded with the hearing on October 27th and Zietek did not appear. I then issued yet another order directing her to attend a competency hearing on November 16. (Dkt. No. 72). Beyond emphasizing the importance of Zietek's attendance, the order explained the consequences of the hearing, and what the implications of an appointment of a guardian ad litem in federal court were, should the Court recommend Zietek be found incompetent. At the October 27th proceeding, Pinnacle's counsel, Fishlin, and I discussed proceeding without Zietek if necessary and taking testimony from others who would have information about whether she could proceed with her lawsuit or whether a guardian ad litem should be appointed.
In addition to Pinnacle's counsel and Fishlin, Sophia McCann, a social worker employed by Shervier, appeared. McCann confirmed that Zietek understood the Court's order to attend the conference and still refused to do so.
Finally, on November 16, the day of the hearing, counsel for Pinnacle filed a letter it had received that day from Zietek (Dkt. No. 76-1) in which she once again informed the Court that she would not attend the hearing. Dkt. No. 76.
In her letter, Zietek wrote: “Not present on 11/16 Hearing - Court has documents NO MORE TO ADD,” referring to other records that had been submitted to the Court addressing her mental health.
II. THE COMPETENCY HEARING
According to Rule 17(b) of the Federal Rules of Civil Procedure, the determination of a litigant's capacity to represent herself is based on the law of the state in which the issue is being considered. See Mil'Chamot, 2016 WL 7756626, at *3 (“Federal courts apply the law of the state of an individual's domicile to determine competence.”) (citation omitted). To that end, in this case we look to the New York Standard for Competence, which is codified in the New York Civil Procedure Law and Rules, section 1201, which provides for the appointment of a guardian ad litem where a person is “incapable of adequately prosecuting or defending his or her rights.”
The court in Mil'Chamot explained the practical difficulties that “attend the determination of competence” in civil litigation, including the lack of funds “to retain a mental health professional” to assist in the determination. 2016 WL 7756626, at *4.
The Court conducted a competency hearing on November 16, 2022 by video-conference, and five witnesses testified. The focus of the hearing was to determine, consistent with the New York Standards, whether Zietek is capable of adequately prosecuting her case. The Court summarizes the testimony below:
1. Dr. Peyman Younesi: Peyman Younesi, the medical director at Schervier, was the first witness to testify. Dr. Younesi has been the medical director at Schervier for three to four years, and he has been a licensed physician since 2010. Transcript of November 16, 2022 Hearing (“Tr.”), at 11. He testified that he has known Zietek “on a superficial level as far as reviews and discussions.” Id. He explained that he and his colleagues at Schervier have discussed Zietek's capacity with respect to medical and financial decision-making, and that “everybody feels that she does have those capacities.” Id. He also testified that, from his perspective, Zietek is capable of prosecuting her rights in this lawsuit. Id. at 12.
A copy of the transcript of the competency hearing is attached to this report and recommendation for ease of reference as at the time of the filing of this report, it had not yet been docketed.
2. Dr. Sayed Mahmud: The next witness to testify was Sayed Mahmud, currently a “house physician” at Schervier. Id. at 14. Dr. Mahmud testified that he has seen Zietek on two to three occasions when her regular physician was not available, and that he had seen her on the day of the hearing. Id. at 15. He has treated her for both mental and physical health issues. Id. He testified that there were currently no mental health issues for which she was being treated. Id. at 15- 16. Dr. Mahmud testified that Zietek is “alert, awake, oriented,” and does not have any memory issues. Id. at 16. He added that she “can decide her financial and personal issues by herself” and that “[s]he has capacity.” Id. See also Id. at 17 (“All I can say, from my medical point of view, [is] that [the] patient has the capacity to decide her affairs on her own.”). He concluded by confirming that the opinions that he had provided at the hearing were “within a reasonable degree of medical certainty as a physician practicing in the State of New York.” Id. at 18.
3. Franca Martino Starvaggi: Franca Martino Starvaggi, the director of social work at Schervier, was the next to testify. She has been at Schervier for 13 years. Id. at 20. She has a master's degree in social work, and she has a background in geriatric matters, with certifications in bioethics and medical humanities. Id. Starvaggi offered that Zietek, while sometimes not making the best decisions for herself such as refusing to come to court, has “the capacity to make decisions.” Id. at 20. When asked whether she had an opinion as to whether Zietek is capable of continuing to prosecute her rights in this lawsuit, Starvaggi opined that she believed that she could, although Zietek was “suspicious” and that if she did not participate in the court proceedings, then no one “will be out to get her.” Id. at 21. To this end, Starvaggi added that Zietek is “convinced that everyone is against her, . . . and the only way to prevent that from happening is for her not to attend [court proceedings].” Id. at 22. Having said all that, when asked directly whether she had an opinion as to whether she thought Zietek was competent to proceed with the lawsuit, Starvaggi answered affirmatively. Id.
4. Sophia McCann: One additional witness from Schervier testified: Sophia McCann, a social worker, who has been at Schervier for a little more than one year. McCann, who received a master's degree in social work in 2021, has been Zietek's assigned social worker since her admission at Schervier. Id. at 25. McCann sees Zietek on at least a weekly basis, if not more frequently. Id. Like the others from Schervier, McCann testified that Zietek “does have the capacity to . . . represent herself in this lawsuit.” Id. at 25-26. McCann has, in fact, spoken to Zietek about the lawsuit, and was the one at Schervier attempting to facilitate Zietek's attendance at the court proceedings on both October 27 and on November 16, albeit unsuccessfully. Id. at 26.
5. Joseph Gunn: In addition to representatives from Schervier, the Court also took testimony from Joseph Gunn, the senior care manager with Bronx Community Guardianship Network (“BCGN”), the guardian ad litem for Zietek in the state court proceedings. Gunn, who has a case management certificate from Hostos Community College, first visited with Zietek in late 2019 and early 2020, when she was at Pinnacle. Id. at 29. The last time he saw her was in November 2020. Id. at 30. Thus, his testimony about Zietek was, by his own admission, historical. Id. Notwithstanding that BGCN still serves as a guardian for Zietek, however, Gunn testified that Zietek “would be competent” in this lawsuit. Id.
Gunn added that “even though she's highly intelligent, [Zietek] has psychological issues, and [was] extremely combative” in her dealings with him. Tr. at 30.
6. Marjorie Varrichio: While not providing testimony, BCGN's attorney, Marjorie Varrichio, Esq., provided additional information about the pendency of the proceedings in state court. She explained that BCGN is in the process of being relieved as Zietek's guardian, and the next proceeding in state court is scheduled for December 14, 2022. Id. at 34-35.
Following the hearing, the Court directed Pinnacle to make a post-hearing submission, and it filed a letter on November 23 addressing Zietek's competency in light of the November 16th competency hearing (Dkt. No. 78). In its letter, Pinnacle contends that Zietek is competent and has the capacity to proceed pro se in this case. It argues that while the Court's obligation to inquire into Zietek's competency was triggered by past determinations (in the state court), it is the Court's determination of her present status that should guide the Court in concluding that Zietek is competent to appear in this case and represent herself. Id. at 1.
The Court agrees with Pinnacle. The witnesses who testified at the hearing - including two physicians and two social workers - unanimously opined that Zietek was competent to proceed in this lawsuit, and that she had the capacity to make decisions on her own behalf. These witnesses all have contact with her regularly and testified as to her current status.
The Court has made its best efforts to evaluate Zietek's competency, a task made significantly more difficult given her unwillingness to attend any hearing that the Court scheduled. Nothing the Court heard from the witnesses who testified at the hearing suggests, however, that Zietek's avoidance of the hearing was anything more than a tactic that supports the presumption of competency rather than the opposite. Indeed, Zietek continues to make submissions to the Court that reflect an understanding of the basics of court process, especially for a pro se litigant.
While the Court admonished Zietek more than once that her failure to attend a competency hearing could result in the dismissal of her lawsuit for failure to prosecute, given that the Court has now held a competency hearing and made a recommendation that Zietek is competent, it seems far preferable to allow the case to proceed on the merits.
As the Court prepared this report and recommendation, for example, Zietek filed a Notice of Appeal of Judge Torres' decision affirming my scheduling of a competency hearing, and she asked for a waiver of the filing fee. Dkt. No. 79. While the submission lacks an understanding of proper procedure, it nonetheless reflects a level of competence consistent with that described by those who testified at the hearing.
III. CONCLUSION
In light of the testimony provided at the November 16 hearing, the Court recommends that Zietek be found competent to proceed with her lawsuit, and that Pinnacle be given permission to renew its motion to dismiss (and Zietek given the opportunity to file any additional opposition to the motion).
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Zietek does not have access to cases cited herein that are reported on Westlaw, she should request copies from counsel for Pinnacle. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
21 Civ 5488
Hearing November 16, 2022
LEWIS JOHS AVALLONE AVILES, LLP Attorney for Defendant Pinnacle Nursing & Rehab Center BY: JAMES P. CONNORS
Before: HON. JAMES L. COTT, U.S. Magistrate Judge
Also Present: Joseph Gunn Sophia McCann Patricia Hennessy Marjorie Varrichio Todd Fishlin Dr. Sayed Mahmud Franca Martino-Starvaggi Dr. Peyman Younesi
THE COURT: Alright. Good afternoon, everyone. This is Judge Cott. Thank you all very much for joining.
I just want to confirm that the court reporter is able to hear me, and that when you do speak, you unmute yourselves, because I do have a court reporter here for this proceeding today.
Just for the record, let me state this is the case of Genevieve Zietek v. Pinnacle Nursing and Rehabilitation Center. The docket number is 21 Civ 5488. The case is assigned to Judge Torres, and she's referred the case to me to determine --or to report to her, I should say, on the issue of the plaintiff's competency.
Ms. Zietek is proceeding pro se, and the record should reflect that Ms. Zietek is not present today. I received from defense counsel, Mr. Connors, a fax -- excuse me, a document that was faxed to him I believe by Ms. Zietek today that he filed on the docket in which she indicates, among other things, that she will not be present at this hearing today and "the Court has documents. No more to add."
Now, let me, just for the record, state a little bit of the history here, and then ask counsel if there's anything he would like to say preliminarily. And then I would like to take some testimony from various people who are here on the line today on the subject of Ms. Zietek's competency to proceed with her lawsuit here today.
I see representatives from the Bronx Community Guardianship Network, as well as from Schervier Rehabilitation and Nursing Center. I also see Mr. Fishlin, who has been appointed counsel for Ms. Zietek in the state court proceeding.
I'll have everyone identify themselves by name on the record in a few minutes, but let me just for the sake of completeness, for the record, review the chronology over the last several months.
Back in March, by order dated March 2nd of this year, Judge Torres, the District Judge to whom this case is assigned, denied the defendant Pinnacle's Motion to Dismiss Ms. Zietek's case without prejudice to renewal once it was determined whether Ms. Zietek was competent to represent herself or whether she needed to proceed with assistance of a guardian ad litem. By that same order, Judge Torres referred the competency issue to me and, in turn, on March 4th, I asked the parties to make submissions in advance of a potential hearing.
In response, Pinnacle reported that Ms. Zietek had moved to another facility and, thus, it did not intend to take a position with respect to her competency since she was no longer in its charge. But, at the same time, Pinnacle reported to the Court that Ms. Zietek's previous guardian ad litem in state court, the Bronx Community Guardianship Network, had sought to extend the guardianship that had previously expired.
Pinnacle then asked for and was granted an adjournment until the Bronx Community Guardianship Network guardianship proceeding was decided, and I extended several times thereafter. In the interim, Ms. Zietek filed a number of letters raising various issues, including seeking a change in venue from the Manhattan courthouse to the White Plains' courthouse.
On August 9th, Pinnacle wrote the Court to advise the motion in state court to extend the guardianship had been adjourned further without a new date. It didn't take a position on Ms. Zietek's request to transfer the case to the White Plains' courthouse, and that the state court judge on March 1st had extended the guardianship of Ms. Zietek by the Bronx Community Guardianship Network and assigned her counsel as well who previously was an individual named Albert Levy, and he has since been replaced by Mr. Fishlin.
Based on those developments, Pinnacle requested the case be restored to active status and that it be permitted to renew its motion to dismiss since plaintiff's interests it said would be protected by those aforementioned appointments and further requested that the Court recognize the appointment of guardian and counsel and move this matter forward to a potential resolution. However, the Bronx Community Guardianship Network and Mr. Fishlin only are representing and are serving as a guardian for Ms. Zietek in the state court proceeding. Neither of them have been appointed here in this federal court proceeding.
Because of Ms. Zietek's request to transfer and Pinnacle's desire to move the case forward, I scheduled a conference to be held on October 7th. By that same order, I denied Ms. Zietek's request to transfer. And on September 19th, Ms. Zietek appealed that decision to Judge Torres, who subsequently affirmed my decision, and, therefore, the case remains here in the Manhattan Federal Courthouse.
We did hold a conference on October 7. Ms. Zietek did not attend that conference, but Mr. Fishlin did, as did Mr. Connors on behalf of Pinnacle, and we scheduled a competency hearing for October 27. However, on October 27, we proceeded and Ms. Zietek did not appear. She had sent a letter to Pinnacle's counsel requesting that it be transmitted to the Court saying that she wouldn't attend the conference on October 27th, and she renewed her request to transfer the case to White Plains.
I then entered another order instructing her to attend the conference today, but we also discussed at the October 27 conference proceeding today without her and my taking testimony from other individuals who might have information about whether Ms. Zietek could proceed with her lawsuit here or whether a guardian ad litem should be appointed on her behalf in this lawsuit.
So we're here today for the purpose of my conducting a hearing under Rule 17(c) of the Federal Rules of Civil Procedure to determine whether Ms. Zietek is competent to represent herself in this litigation. The parties have submitted certain documents in various filings with the Court, most of which relate to the guardianship proceeding in state court. It's possible that the Court may need to obtain additional records from medical providers or otherwise to determine Ms. Zietek's current mental health, but for today's purposes, I'm simply going to ask those of you who are on our zoom conference a number of questions under oath on the subject.
It should be clear that I will not be the judge's final word on whether Ms. Zietek is competent to proceed with her case. I'll be making a recommendation to Judge Torres, who will be the ultimate decision maker when it comes to the question of Ms. Zietek's competency.
I guess I'll also state for the record under Rule 17(b) of the Federal Rules of Civil Procedure that the determination of a litigant's capacity to represent herself is based on the law of the state in which the issue is being considered. To that end, in this case we would look to New York law and the New York standard for competency, which is codified in the New York Civil Procedure Law and Rule --section 1201, which provides for the appointment of a guardian ad litem where a person is incapable of adequately prosecuting or defending his or her rights.
So I think that's all I wanted to say by way of background. I will add that there is in the record already the annual report of the guardian in state court from the year 2020. I do not believe the annual report of the guardian in state court from 2021 is currently in the record. And there are also a number of records from the Montefiore Hospital. At one point in 2021, it appears that Ms. Zietek was hospitalized, and she has submitted some records from Montefiore Hospital. But most importantly I think is to assess Ms. Zietek's competency at the present time here in November of 2022.
So that is what brings us all together here today. As I say, I'm extremely grateful to all of you for your willingness to participate here today.
Let me ask Mr. Connors first to state his name for the record, who he represents, and whether there's anything he'd like to say by way of any preliminary remarks before we proceed.
MR. CONNORS: Thank you, your Honor. Good afternoon. My name is James Connors from the law firm of Lewis Johs Avallone & Aviles representing the defendant, Pinnacle Nursing Rehab in this matter.
Your Honor's recitation of the pertinent facts and procedural history is, for all intents and purposes, accurate. I would only add to that that in our investigation and determination of her competency and your Honor's efforts in this regard, which I think have been -- have been excellent and very, you know, protective of Ms. Zietek's rights, I would note that based upon all the correspondence we've received from Ms. Zietek and all the communications, and we'll see what the other witnesses say, but it appears that she has awareness of the litigation proceeding. She has access to information and the ability to communicate with both us and the Court, and she is demonstrating a conscious decision-making process to me that appears to be competent, however, potentially ill advised from a litigation standpoint.
She appears to be very aware of what's happening and making reasoned decisions. Regardless of whether we would all agree or not agree with those decisions, it appears she's doing that.
So I look forward to your Honor's inquiry of the witnesses and reserve any type of follow up until after we've heard from some of the witnesses.
THE COURT: Alright. Thank you, Mr. Connors.
MR. CONNORS: Thank you.
THE COURT: Mr. Fishlin, I know, as I said earlier, you are not appearing here in any formal way on behalf of Ms. Zietek, but perhaps you should state your name for the record and the role you have been playing as relates to the proceeding here today.
MR. FISHLIN: Yes. Thank you, your Honor.
My name is Todd Fishlin, and I am a court-appointed counsel to Genevieve Zietek. She had been adjudicated incapacitated by an order of the State Supreme Court, County Bronx, in March of 2020. Those proceedings, as your Honor recounted on the record, are correct.
There is currently a motion to extend the guardianship, and I have been appointed as her counsel in that matter to represent her there. I am not making an appearance in this matter. I am only here for informational purposes and at the service of the Court to assist in any way I can short of actually appearing on Ms. Zietek's behalf here, because that is not the scope of my appointment.
THE COURT: Alright. Thank you, Mr. Fishlin.
I think, unless anyone else who's on the call wishes to say anything preliminarily, I'd like to proceed by taking, and I think it will be very brief, testimony from all of the various witnesses who are here, and I would be inclined to begin with Dr. Younesi, who I gather is the medical director at Schervier.
Is that acceptable to everyone?
MR. CONNORS: (Nodding)
MS. MCCAN: (Nodding)
MR. FISHLIN: Yes.
THE COURT: Alright. So, Dr. Younesi, if I'm 21 pronouncing your name correctly
DR. YOUNESI: Yes.
THE COURT: -- are you prepared to provide brief testimony at this time?
DR. YOUNESI: Yes. Actually, I'm here as the medical director of Schervier. We do have Dr. Sayed, who is the actual on-site, boots on the ground doctor who sees her regularly, so he has more insight and detail. I do have some insight and detail upon chart review that I did that I could testify to, but
THE COURT: Well, why don't -- in an abundance of caution, why don't I take testimony from both of you if that's alright. So why don't we proceed with you first then.
DR. YOUNESI: Sure.
THE COURT: I'm going to swear each witness under oath as we proceed.
PEYMAN YOUNESI, called as a witness by the Court, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY THE COURT:
Q. Could you please state your full name for the record, and your title and current position?
A. Sure. Peyman Younesi. I'm the medical director at Schervier Nursing Home.
Q. And how long have you been the medical director at Schervier?
A. I want to say three, four years now.
Q. Alright. Can you very briefly describe your educational background?
A. Yes. I did medical school and did residency in internal medicine, Board certified in internal medicine, and I've practiced only in nursing homes and assisted living facilities. And that's the scope of my practice.
Q. How long have you been a licensed physician?
A. Since 2010.
Q. 2010?
A. Yes.
Q. Alright. Could you describe what history of treatment for Ms. Zietek you have been involved in and how long you've known her?
A. So I have only known her on a superficial level as far as reviews and discussions. From what I know, she has been seen by psychiatry and she has been seen by primary care, who is Dr. Sayed that I referred to.
And, basically, we have discussed this matter of capacity and medical decision making, financial decision making; and from what I gather from all the disciplines, including social work, is that everybody feels that she does have those capacities. However, she does have moments where she waxes and wanes. But as far as the question goes to make medical, financial decisions, from what we gather, is yes.
Q. And so yes meaning -- let me phrase it a different way.
A. Sure.
Q. What is your opinion as to whether Ms. Zietek is capable of prosecuting her rights in this lawsuit given what you've just said, if I can ask you it that way?
A. Again, from the review that all the providers have put in the chart, and discussions, the decision to have capacity, to understand what's going on and to proceed with any lawsuit or manage her health, or finances, whatever, the answer would be yes from what I've gathered in discussions.
Q. Do you have any opinion on whether this litigation, this lawsuit has any effect on her mental health?
A. I don't.
Q. Alright.
THE COURT: Mr. Connors, are there any questions you want me to ask Dr. Younesi?
MR. CONNORS: I'll reserve my questions for the next doctor.
THE COURT: Okay.
MR. CONNORS: Yeah.
THE COURT: Mr. Fishlin, I don't know that I'm going to ask you that question, because I don't think you're here in a formal capacity. If for some reason you think there's something you think the Court should follow up on, I'm certainly happy to hear from you, but I want the record to be clear you're not here in any capacity representing Ms. Zietek, so unless there is anything specific from you with this witness, I think I can excuse him at this point.
MR. FISHLIN: Thank you, your Honor. I don't have anything to add at this point, and I agree it's not my intention to question witnesses.
THE COURT: Okay. Very well.
Dr. Younesi, thank you very much for your testimony. I think we can let you go, and I'll ask questions of your colleagues who are on the line now. So thank you very much for joining today.
THE WITNESS: Alright. Thank you so much.
THE COURT: Alright.
(Witness excused)
THE COURT: I gather -- is it Dr. Sayed?
DR. SAYED: Hello.
THE COURT: Is Sayed your first name or last name?
DR. SAYED: Yes, my first name. My full name is Sayed Mahmud.
THE COURT: Okay. Dr. Mahmud, are you prepared to give testimony in this proceeding today?
DR. SAYED: Yes.
THE COURT: Okay. Dr. Sayed, let me swear you in.
SAYED MAHMUD, called as a witness by the Court, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY THE COURT:
Q. Dr. Mahmud, what is your title and current position at Schervier?
A. I'm working as a house physician.
Q. You are working as a house physician, is that what you said?
A. Correct.
Q. Is that a full-time job at the facility?
A. Yes.
Q. And could you briefly describe your educational background?
A. Yeah. Well, I graduated in 2013, and I have experience working abroad. I get my license here practicing in United States last year, and since then, I am working in Schervier Rehab.
Q. Do you have any Board certifications?
A. Not yet.
Q. Do you specialize in any particular kind of medicine?
A. Not yet.
Q. Where abroad did you practice before you came to the United States?
A. In Bangladesh.
Q. In Bangladesh?
A. Yes.
Q. Alright. Could you please describe your history with Ms. Zietek and any treatment you may have given her and how long you've known her?
A. Yes. I saw her briefly on two to three occasions when her regular physician is not here, so -- and also I -- I saw today, too.
Q. I'm sorry. I didn't hear the last bit you said. I think it got cut off. If you could repeat that, please?
A. Well, I saw this patient occasionally two to three times in the last couple of months.
Q. When was the last time that you saw her?
A. Today.
Q. Today?
A. Yes.
Q. And when you see her, are you providing her with treatment or what is the nature of your interactions with her?
A. Yes. If she needs treatment, yes.
Q. And is the treatment you're giving her with respect to physical condition issues, mental condition issues, both?
A. Both.
Q. Both. Alright.
To the extent you are treating her with respect to any mental health issues, can you speak to whether there are any current mental health issues for which she's being treated?
A. No.
Q. There are not?
A. No.
Q. Okay. Now, do you have an opinion as to whether Ms. Zietek is capable of prosecuting her rights in this lawsuit?
A. I can say that patient is alert, awake, oriented. Patient does not have any memory issue. And patient can decide her financial and personal issues by herself. She has the capacity in my opinion.
Q. Alright. And that's based on the interactions you've had with her, including as recently as today?
A. Yes. And also she was seen by psychiatrist yesterday. I just reviewed, all of the record is the same.
Q. You said she was seen by a psychiatrist as recently as yesterday?
A. Yes.
Q. And that's consistent with what you're reporting?
A. Yes.
Q. Alright. Do you have an opinion as to whether going forward with this litigation would have on Ms. Zietek's mental health?
A. My only concern is she has ups and downs. She was seen by the same psychiatrist before, six months ago, and at that time she had some mental issue going on. But currently, right now, I can say she has the capacity, but she has some ups and downs.
Q. Alright. But is it your professional opinion that you believe Ms. Zietek is capable or competent of continuing to proceed with her lawsuit on her own if that's what she chooses to do?
A. All I can say, from my medical point of view, that patient has the capacity to decide her affairs by her own.
Q. She has the capacity to decide her affairs on her own?
A. Yes.
Q. Is that what you said?
A. Yes.
Q. Alright.
THE COURT: Mr. Connors, do you have any questions you want to ask of Dr. Mahmud?
MR. CONNORS: Sure, your Honor, just briefly.
CROSS-EXAMINATION
BY MR. CONNORS:
Q. Dr. Mahmud, my name's Jim Connors. I represent Pinnacle Nursing in connection with this matter.
With respect to the opinions that you just provided to the Court, were those opinions within your reasonable degree of medical certainty? A. Yes.
Q. And when you refer to such things as affairs, are you talking about such things as providing for her own house -- arranging for her own clothing, making her needs known to you, making medical decisions, and other -- managing her funds and monetary resources?
A. Yes.
Q. Okay. And is she able to, if not do things physically herself, is she able to direct others on how to manage those things for her?
A. Yes.
Q. Okay. And those opinions that you just gave me, are those also within a reasonable degree of medical certainty as a physician practicing in the state of New York?
A. Yes.
Q. Okay. Thank you. I have no further questions.
THE COURT: Alright. Thank you very much, Mr. Connors.
I think, Dr. Mahmud, we don't have any further questions for you, so you're free to leave this proceeding at this time if you need to.
THE WITNESS: Okay. Thank you.
THE COURT: Thank you very much.
Ms. McCann.
MS. MCCAN: Yes. Hi.
THE COURT: Hi. How are you again? Nice to see you.
MS. MCCAN: Nice to see you as well.
THE COURT: Alright. And who else is with you there?
I see there's another person.
MS. MCCAN: Yes.
MS. MARTINO STARVAGGI: My name is Franca Martino-Starvaggi, director of social work at Schervier.
THE COURT: Alright. Hello.
Would it be appropriate for you to give testimony or Ms. McCann?
MS. MARTINO STARVAGGI: Well, Sophia is the primary social worker. Obviously, I've had interactions with Ms. Zietek, so I do have a familiarity with her over the past year as well.
THE COURT: Alright. Again, in an abundance of caution and in order to try to make as full a record as possible, as you've heard, these questions don't last very long, I think I'd be inclined to ask both of you some questions just so that the record is complete.
So, Ms. Martino Starvaggi, don't I start with you then.
MS. MARTINO STARVAGGI: Okay.
THE COURT: And if I could put you under oath and ask you to swear as follows.
FRANCA MARTINO STRARVAGGI, called as a witness by the Court, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY THE COURT:
Q. Could you please state for the record your title and current position?
A. Sure. My title is director of social work. I've been here for the last 13 years.
Q. Alright. Could you briefly describe your educational background?
A. Sure. I got my undergraduate in 1985. My Master's is in social work, in 1987. My history has been in mostly inpatient hospitalization, social work, up until 13 years ago when I became director of social work in a nursing home setting.
Q. Alright.
A. My background has been geriatric, though, throughout.
Q. Very well. That's helpful to me.
Do you have any particular licenses or other degrees that should be included in the record and described in your educational background?
A. Just certification in bioethics and medical humanities. That's all I can
Q. Alright. Could you describe your history of treatment for Ms. Zietek or otherwise your knowledge of her?
A. So Ms. Zietek can -- has the capacity to make decisions, in my opinion. However, sometimes her judgment is not such that she makes the best decisions for herself. Given the fact that she is refusing to come to the Court proceedings all these -- the last few months, it doesn't make sense given the fact that she's initiated these court proceedings. So although she knows exactly what's happening, is able to manage sending faxes and letters to all on this call in these proceedings, her behavior doesn't quite aline with her mental capacity, and that's where I'm stuck at times.
Q. How long have you known her and interacted with her?
A. Since her admission here, which is over a year.
Q. Alright. Do you have an opinion of -- as to whether Ms. Zietek is capable of continuing to prosecute her rights in this lawsuit?
A. I believe she can, but I don't know if she -- I think she has -- she's paranoid. She has -- she's suspicious, so her -- she feels that if she doesn't participate, no one will be out to get her and the Court proceedings will not go against her. This is her thinking. This is what she verbalizes to me is the fact that if she's absent, it can't take place, and, therefore, she's safe from the proceedings to go against her.
Q. Alright. Well, you said that you think that she's paranoid. I didn't hear that word referred to by any of the medical doctors who testified. Is this information that you have at the facility in which she has in some way been diagnosed as such?
A. Back in -- I want to say six months ago, when the initial psychiatrist assessment was done, there was some verbalization -- documentation of paranoia and suspiciousness, which made him diagnose her as bipolar at the time. However, since then, he's changed the diagnosis to an adjustment disorder and feeling that right now she's not paranoid and suspicious.
The only reason why I'm using that term is because of the fact that she is convinced that everyone is against her, and that you all will judge against her, and the only way to prevent that from happening is for her not to attend. So that's my opinion as a social work professional, and in showing that -- she's showing a little suspiciousness and paranoia by her behavior in these proceedings. And sometimes in -- when she's being taken care of by staff here, she's suspicious at times for their -- whether they're in her best interest or not.
Q. Well, the Court has to make a determination as to whether Ms. Zietek is competent to proceed
A. Uh-huh.
Q. -- with the lawsuit. Do you have an opinion as to whether you think she is competent to proceed with the lawsuit?
A. Yes.
Q. Yes, she is, or yes, you have an opinion and you'll tell me what it is?
A. Yes, I think she has the ability to proceed in the lawsuit.
Q. Okay. Do you have any opinion about whether proceeding with the lawsuit would have any impact on her mental health?
A. Well, it is currently in the fact that she's obsessed about it, and the fact that she worries about it, and the fact that she's constantly faxing letters and writing letters about it. So of course it's impacting her in that way.
Q. Alright.
THE COURT: Mr. Connors, would you like to ask any questions of Ms. Martino Starvaggi?
CROSS-EXAMINATION
BY MR. CONNORS:
Q. Good afternoon, Ms. Starvaggi.
A. Good afternoon.
Q. With respect to what you just expressed to the Court, other than your disagreement with some of the decisions that she is making concerning this active litigation, do you have any other concerns about her ability to both communicate with you and other staff members, or to direct you and other staff members to take actions on her behalf with respect to communicating with this Court?
A. No, absolutely no. She is quite capable of communicating her needs and advocating for herself.
Q. And based upon your discussions with her concerning this lawsuit, I just want to confirm, is it your testimony that she is aware of all these proceedings and implications of her failure to participate in these proceedings?
A. Yes.
Q. Would you characterize Ms. Zietek's conduct as avoidance of this process rather than an inability to participate in this process?
A. Yes. It's clearly an avoidance and feeling that that's how it's going to miraculously disappear.
Q. Okay. And are your opinions today being offered to a reasonable degree of certainty as a licensed social worker in the state of New York?
A. Yes.
Q. Okay. Thank you for your time.
A. No problem.
THE COURT: Alright. Thank you very much, Ms. Martino Starvaggi.
(Witness excused)
THE COURT: Ms. McCann.
MS. MCCAN: Yes. Hi.
THE COURT: Hi. How are you?
MS. MCCAN: Good. Thank you.
THE COURT: We'll proceed with your testimony at this time.
SOPHIA MCCANN, called as a witness by the Court, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY THE COURT:
Q. Alright. Could you state your full name and title for the record, please?
A. My name is Sophia McCann. I'm a social worker at Schervier Nursing Rehab Center.
Q. How long have you been a social worker there?
A. Just over one year.
Q. And could you briefly describe your educational background?
A. Sure. I got my undergrad in social work at Stony Brook University in 2020, and my Masters in social work at Stony Brook in 2021.
Q. Is this your first job after graduation?
A. Yes.
Q. Alright. Could you please describe your history with Ms. Zietek for the record?
A. Sure. So I've been her assigned social worker since her admission here at Schervier, and, I mean, basically, anything -- if she needs things on a daily basis or if she has any requests, you know, she is able to access me, and that's that.
Q. So do you essentially see her on a daily basis?
A. Not necessarily a daily basis, no.
Q. Weekly basis?
A. Sure. Yeah.
Q. Okay. And do you have an opinion as to whether Ms. Zietek is capable of pursuing her rights in this lawsuit?
A. Yes. I think she does have the capacity to, you know, represent herself in this lawsuit.
Q. Have you discussed the lawsuit with her at any time?
A. Yes. With as much information she's willing to share, which is not very much, but she definitely has spoken to me about it. I have given her the opportunity to join both our previous hearing on October 27 and this one today in which she's refused to participate in both.
Q. All right. And let me just follow up on that briefly. So in advance of today's hearing, did you speak with her about participating herself in the hearing today?
A. Yes. And similarly to what Ms. Martino Starvaggi said, she feels if she participates, it will go against her, so she feels if she doesn't participate, it would be in her best interest.
Q. Does she understand from your conversations with her that the purpose of today's hearing is solely to determine whether she's competent, not to in any way decide the merits of her case?
A. Yes, definitely.
Q. Alright. And do you have any views as to whether this lawsuit has an effect on her mental health?
A. Yeah. Again, similarly to what Ms. Martino Starvaggi said, it affects her now in the way she is obsessing over it, writing the letters, writing the faxes, reading everything she can about it, but that's the extent of, you know, how it kind of affects her.
THE COURT: Alright. Mr. Connors, do you want to ask some follow-up questions of Ms. McCann.
MR. CONNORS: No, your Honor. I think you covered everything. Thank you.
THE COURT: Ms. McCann, thank you very much for making all these arrangements, including making your best effort to see if Ms. Zietek would participate today. I think now that we've heard from Ms. Martino Starvaggi, I'm happy to have you all exit the proceedings. There's no reason for you to stay any longer.
MS. MARTINO STARVAGGI: Thank you very much.
MS. MCCAN: Thank you very much.
THE COURT: Thank you both.
MS. MCCAN: Bye-bye.
THE COURT: Alright. So now we have representatives of the Bronx Community Guardianship Network. Do you want to identify yourselves for the record, please?
Ms. Hennessy, I think you're muted.
MS. HENNESSY: Yes. I'm Patricia Hennessy. I'm the licensed social worker, current director of Bronx Community Guardianship Network.
THE COURT: Thank you.
Ms. Varrichio.
MS. VARRICHIO: Good afternoon, your Honor. I am the attorney for Bronx Community Guardianship Network, Marjorie Varrichio. I'll give my address for the record. 2817 Harrington Avenue, Bronx, New York 10461.
THE COURT: Alright. Thank you.
Ms. Hennessy, would it be appropriate if I asked you to also provide brief testimony at this proceeding based on your and/or others at the Bronx Community Guardianship Network's knowledge of Ms. Zietek?
MS. HENNESSY: Your Honor, if I could ask respectfully, Joe, Joseph Gunn, who's on this call, is a senior care manager for Bronx Community Guardianship Network. He's accompanying his wife to a medical appointment today. I don't know how much longer he can remain with us. If we could -- if you could speak to Mr. Gunn first, that would be
THE COURT: Alright. I didn't see that he was there, because I'm just seeing a telephone, and now I see him there.
Mr. Gunn, can you hear me alright?
MR. GUNN: Yes, your Honor. Good afternoon. Thank you.
THE COURT: Good afternoon. Are you free for another few minutes to provide testimony at this proceeding?
MR. GUNN: Yes. Yes. Yes, I am.
My name is Joseph Gunn. I'm the senior care manager with Bronx Community Guardianship Network.
THE COURT: Alright. And let me, as I have with the other witnesses, swear you under oath.
JOSEPH GUNN, called as a witness by the Court, having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY THE COURT:
Q. Alright. Mr. Gunn, could you please -- I guess you stated your title.
And this is your current position; is that correct?
A. That's correct.
Q. How long have you been with Bronx Community Guardianship Network?
A. I've been with them a little over five years.
Q. Alright. Could you briefly describe your educational background?
A. Certainly. I have a Bachelor of Science degree in business administration, and I have a case management certificate from Hostos Community College.
Q. Alright. Could you please describe your history of treatment for Ms. Zietek or otherwise your relationship to her?
A. I visited her when she first -- when we first got her case back in the early -- I guess it was late 2019, early 2020.
Q. Which was when she was at Pinnacle?
A. This was when she was at Pinnacle.
Q. Yes. Okay. Go ahead.
A. I have not been in communication with her since she's been at Schervier.
Q. So the last time you saw her was how long ago?
A. It was in November of 2020.
Q. So you haven't seen her for two years?
A. That's correct.
Q. Alright. So then any testimony you might provide with respect to her competence would be more historical; is that a fair characterization?
A. Yes. That would be fair to say.
Q. Alright. Do you have an opinion about her competency to proceed with this lawsuit in Federal Court based on your knowledge or history of her understanding that is now at least two years old?
A. I think she would be competent in the lawsuit. However, I'll say that she has -- even though she's highly intelligent, she has psychological issues, and extremely combative. My dealings with her were brief, because she was extremely, you know, out of line and not cooperative.
I also -- she hasn't been a participant in any of the proceedings, so that's not helping her. So on this -- although she's very intelligent, of this I just -- I don't understand why she wouldn't be more of an advocate for herself. Q. Well, people who represent themselves in lawsuits make decisions, sometimes wise, sometimes unwise, but the purpose of this proceeding is for the Court simply to determine whether she's capable of making decisions, whether they're good ones or bad ones, not anything more than that. But I gather from what you said even though your last interaction with her was approximately two years ago, it's your view, based on what you know of her, that she would be competent to proceed with this lawsuit; is that correct?
A. Yes, that would be correct.
Q. Alright.
THE COURT: Mr. Connors, any follow up questions?
CROSS-EXAMINATION
BY MR. CONNORS:
Q. Just I wanted to highlight, Mr. Gunn, do you have any
A. Yes.
Q. -- training in psychology or psychiatry?
A. I've taken undergraduate courses in psychology at Manhattan College when I was a student there. Go ahead. I'm sorry.
Q. No. Sorry. Finish your answer. I thought you were done.
A. I do -- I have some undergraduate courses in psychology that I took as an undergraduate student at Manhattan College.
Q. Do you currently hold any licenses or certificates to provide any type of psychiatric or psychological counseling, evaluations, or advice in New York State?
A. No, but I do have a certificate in case management and the ability to communicate with clients and to determine their needs and wants. And, you know, try to give them the best possible care as possible.
Q. When you refer to care, what aspects of care are you referring to?
A. Making sure that they're being treated properly in the nursing homes, visiting them. Making sure that they're -- they're -- they're doing well. Communicating with the staff, with the doctors, the nurses, the social worker, the dietician. Anyone that's part of her care plan team.
Q. Would it be fair to say you're essentially what would be considered a patient care advocate? Is that consistent with your testimony?
A. Yes. Yes. I have other clients that I visit, and I would say that would be appropriate.
Q. And you -- just to again reiterate, you have not seen or provided this service to Ms. Zietek in the last two years approximately?
A. That's correct. November of 2020.
Q. Alright. Thank you. I have nothing further.
THE COURT: Alright. Thank you very much, Mr. Gunn. You are free to leave this proceeding.
MR. GUNN: Thank you.
THE COURT: Ms. Hennessy, or Ms. Varrichio, is that, from your standpoint, all the testimony I should be taking from Bronx Community Guardianship Network, or, Ms. Hennessy, do you have some testimony you think should be included in the record here.
MS. HENNESSY: I don't know, your Honor, if Joe Gunn has left the call, but he
MR. GUNN: Still here, your Honor.
MS. HENNESSY: Okay. Joe, you didn't speak about the face time calls that you participated in during COVID.
MR. GUNN: Yes, Face Time -- the visits were Face Time calls, and that was primarily due to the COVID that we got hit with back in early 2020. Those calls, those call visits were very brief, because of her unwillingness to talk to me and to cooperate, and to have regular conversations.
THE COURT: Just to be clear, we're talking about now the year 2020; is that correct?
MR. GUNN: That's correct.
THE COURT: So the point Ms. Hennessy is raising with you is your interactions with Ms. Zietek in 2020, because of the pandemic, were remote and not in person; is that correct?
MR. GUNN: Correct.
THE COURT: Okay. Was there something else, Ms. Hennessy, you wanted me to follow up on with Mr. Gunn?
MS. HENNESSY: No. Thank you, your Honor.
THE COURT: Alright. So now I think, Mr. Gunn, we can let you go.
MR. GUNN: Okay. Thank you.
THE COURT: And, Ms. Hennessy, I gather your knowledge about Ms. Zietek is all secondhand or beyond, or do you have any personal knowledge about Ms. Zietek?
MS. HENNESSY: Correct, your Honor.
THE COURT: So there wouldn't be a need to take testimony from you as a supervising official as you are.
MS. HENNESSY: Correct, your Honor.
THE COURT: Alright. Ms. Varrichio, is there anything else for the purposes of this record that you think I need to hear from your client on the subject of Ms. Zietek's competency?
MS. VARRICHIO: No, your Honor.
THE COURT: I gather the Bronx Community Guardianship Network is still her guardian ad litem in the state court proceeding; is that correct?
MS. VARRICHIO: Your Honor, currently, in state court, it's called a guardian, and BCGN is actually requesting to be relieved as guardian for Ms. Zietek, because they really feel that they cannot really effectively assist her because she's extremely resistant to any help or care that they attempt to give her. So -- but currently they are the current guardian, and I believe that in state court, the Court -- the Bronx Supreme Court feels that she does need a guardian.
THE COURT: Alright. What is the current status of the application that BCGN has made to the state court?
MS. VARRICHIO: It is on for another control date on December the 14th, and the main reason for the adjourn -- some of the reason for the adjournments has been Ms. Zietek, because she has refused to appear and, you know, so we've had it adjourned a few times. But I believe that December 14th may be the last adjourned date, and I believe also that the Court does have in mind they have another guardian, another not-for-profit who has agreed to take on the role as successor guardian. So that's, to the best of my knowledge, where that proceeding is at at the moment.
THE COURT: And can I ask, from what you understand, can you tell me what was the basis on which the state court made the decision that Ms. Zietek needed a guardian in the state court proceeding?
MS. VARRICHIO: I will answer to the best of my ability if that's alright. Because I was not involved in the underlying proceeding.
THE COURT: Alright.
MS. VARRICHIO: But I believe she was having difficulty -- I know she was having difficulty with a landlord, and I also know that there was litigation surrounding her failure to pay her rent. And I also think she was a behavioral issue where she was residing. So there were a few things of that nature. And then I guess a proceeding was brought. I'm not sure if it was initiated by the nursing home. I cannot remember right now. I don't know if Mr. Fishlin knows.
And, you know, to try to at least get banking information to see if Medicaid might pay for her stay there, because, again, she was not compliant with any requests, to provide any information, you know. And she does reside, you know, currently at Schervier. She used to reside at Pinnacle. And, you know, most usually there are Medicaid applications filed or bank information as provided, so either there's a private pay situation or Medicaid is going to pay. But in any of those cases, there needs to be some level of cooperation with providing information.
THE COURT: Alright. Well, I'm asking in part because what I believe prompted Judge Torres here in Federal Court to refer to me the question of Ms. Zietek's competency is at least in part, if not in large part, the fact that she learned that Ms. Zietek had a guardian in this unrelated state court proceeding. However, as you've heard today, all of the witnesses under oath in varying ways have all testified that they believe she is in fact competent to proceed with this lawsuit at this time.
I don't think the appointment of the guardian in state court, frankly, has any legal consequences in a formal way to any decision that is made here in Federal Court. If you have some view otherwise, or there's any other information you have about this, of course I welcome it, because I want to make the best decision I can, with as much information as possible, and that's why we've taken the testimony we have today even in the absence of Ms. Zietek who, frankly, if it is determined she's competent, may not see that as a victory, but in some respects would be a victory because then her lawsuit can proceed to the merits without someone representing her interests along the way.
But I don't know if you have any views about what I just said or not. If you don't, that's fine.
MS. VARRICHIO: So the only -- because I was not involved in that underlying proceeding, and I actually just pulled up the order and judgment appointing guardian. And it was initiated by a facility. So, in other words, it probably -- it probably definitely had that specific purpose of trying to provide information from a resident who was non-compliant, so it couldn't appreciate the nature and consequences of her refusal or inability to provide those documents or that information.
So, you know, in -- I guess in state Supreme Court guardian world, sometimes that is a reason to appoint a guardian.
MR. FISHLIN: Your Honor.
MS. VARRICHIO: I do a lot of
THE COURT: Just one second, Mr. Fishlin. I'll hear from you in a moment.
MS. VARRICHIO: And if I'm misspeaking, I apologize, but that's just my thought.
THE COURT: Alright. Thank you. I appreciate that, Ms. Varrichio.
Mr. Fishlin, you wanted to be heard.
MR. FISHLIN: Yes. Thank you.
Prior to the order appointing a guardian, there was a decision with findings of fact relative to the reasoning. You're asking about why she had a guardian appointed in the first place. This is a part of the public record. I'm happy to provide it to the Court, or Mr. Connors can provide it to the Court. It outlines several issues she was having in the community at the time. This order is also from 2020, and would be dated information.
Those issues, while she was residing in the community, she no longer has. She's been institutionalized now for two years, so her current state of affairs is quite different than it was at the time, but it does give the Court some information about why she initially had a guardian appointed.
THE COURT: Alright. I'm not sure, Mr. Connors, if that decision is in the record of this case, so if it's not, do you have that decision?
MR. CONNORS: I believe it was attached. I'm just trying to figure out, because the order -- are you talking about the 19-page order dated January 13 of 2020?
MR. FISHLIN: This is dated 11-7-2019, and this is the decision and order prior to the one that you're speaking of.
MR. CONNORS: Okay.
MR. FISHLIN: It directs counsel to settle a further order that ultimately is the one you're referring to.
So to the extent that there are findings of fact in this particular decision, I think it's informative. They speak to other issues besides the ones that Ms. Varrichio was describing that she was having in the community relative to a hoarding issue in her apartment, as well as some -- the nonpayment of rent issue.
So it may -- it may provide the background the Court was asking for. It is dated information, though, as well, and he's heard testimony today about, you know, current medical providers, what their opinions of her competency to prosecute this matter are. So it may be more reliable to base a decision upon, what's been said today.
THE COURT: Mr. Connors, my plan following this hearing is to give you the opportunity to file something post hearing to advocate whatever you think is appropriate. And in doing so, perhaps you can include in this document that Mr. Fishlin is referring to this decision. Even if it's historical, it may be that was then this is now, but I think for purposes of the complete record it would be worth having that in the Federal Court proceeding as well.
MR. CONNORS: I just reviewed my file. I do not have that particular decision. I just have the subsequent one in January. So today, if you could send that to me, I would certainly include that and provide it to the Court.
I think what was going on back in 2019, 2020 is there was a concern she needed medical care and treatment at a long-term care facility, and in order to facilitate the provision of those services and the payment of those services, there was a certain level of cooperation needed, as Ms. Varrichio indicated. And there was an issue as to, you know, this was for her medical -- in part for her medical benefit. And then there was an issue of property she owned outside the apartment in the context she may or may not be returning to because of her residence in a long-term care facility. But if Mr. Fishlin could provide the order, because I don't have access to the Court file because it's -- I don't have access to it because I don't practice in the mental hygiene department. It's not on eLaw. So if you could provide that order, I will certain review it and I will provide it to the Court with my comments on what we've heard today and my experience thus far.
THE COURT: Alright. Mr. Fishlin, if you could provide that to Mr. Connors, I'd be appreciative. Is there anything else that you want to say for the record at this juncture?
MR. FISHLIN: No. I do not have anything to add, and I will be happy to provide that, a copy of that decision to Mr. Connors following the hearing.
THE COURT: Alright. Mr. Connors, how much time will you need to submit something to the Court?
MR. CONNORS: I think, I mean, a week is fine. I think we've waited long enough, so I don't want to hold up the process. So I think I can get something to you in a week, and it's going to be fairly short and to the point.
THE COURT: Alright. That's fine then, so I'll expect a submission by the 23rd of November then?
MR. CONNORS: Yeah. That's fine. That's the date before Thanksgiving. That's fine.
THE COURT: Yes. Okay. I think unless there's anything further anyone wishes to say, I think we're at the end of this proceeding at this time.
Ms. Varrichio or Ms. Hennessy, is there anything further on your end that you wanted to say at this proceeding?
MS. VARRICHIO: No, your Honor.
MS. HENNESSY: No, your Honor.
THE COURT: Alright. I very much appreciate your taking the time to come to this proceeding this afternoon. It's been very well to have both of you and Mr. Gunn here. So thank you all very much.
Mr. Fishlin, thank you very much as well for your willingness to come and attend today.
Of course, Mr. Connors, you were obligated to attend, so I'm not sure I can thank you in quite the same way as the others.
If I could ask the court reporter, who I very much also appreciate being with us today, because we have a shortage of court reporters, the Court is going to need to get the transcript of this proceeding in order to prepare a report to Judge Torres. What is the timeline as far as getting the transcript of this proceeding today going to entail if I could ask the court reporter.
COURT REPORTER: Yes, your Honor. Would a couple days be okay?
THE COURT: Absolutely. Next week would also be fine. Frankly, I don't think I'd need it until after Mr. Connors has submitted his letter. I can imagine what Mr. Connors' letters is going to say already probably, but I think I need to have the transcript and Judge Torres will need to have the transcript. So if you could have it sometime next week, that would be great. Is that possible?
COURT REPORTER: Yes, your Honor. Thank you.
THE COURT: Alright. Terrific.
MR. CONNORS: Your Honor, if I may, the format of my submission, is a letter format sufficient?
THE COURT: A letter format is sufficient.
MR. CONNORS: Alright. Thank you.
THE COURT: So thank you all very much. I very much appreciate everyone's time. Have a good afternoon, and have a good Thanksgiving season of everybody.
(Adjourned)
INDEX OF EXAMINATION
Examination of: Page
PEYMAN YOUNESI
Direct By The Court .............. 11
SAYED MAHMUD
Direct By The Court .............. 15
Cross By Mr. Connors .............. 18
FRANCA MARTINO STRARVAGGI
Direct By The Court .............. 21
Cross By Mr. Connors .............. 24
SOPHIA MCCANN
Direct By The Court .............. 25
JOSEPH GUNN
Direct By The Court .............. 30
Cross By Mr. Connors .............. 32