In re Ellsman , 165 A.D.2d 825 ( 1990 )

In a proceeding pursuant to Mental Hygiene Law article 78 to compel an accounting, the committee for adjudged incompetent Florence Ellsman appeals from so much of an order of the Supreme Court, Kings County (Leone, J.), dated April 3, 1989, as denied its application for an accounting from James Rudolph.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the committee's application for an accounting is granted.

Florence Ellsman and her sister Gladys Rudolph lived together for many years in a house owned by Florence located in Richmond County. The sisters maintained a joint bank account into which Florence deposited her pension and Social Security checks and from which Gladys paid Florence’s bills. In 1984 Florence deeded the Richmond County property to Gladys, who died the following year. Shortly after Gladys’ death her children and sole heirs, of which James Rudolph was one, deeded the property to themselves.

In December 1985 Charlotte Swirz, one of Florence’s nieces, commenced a proceeding seeking a declaration that Florence was incompetent by virtue of mental illness and the appointment of a committee to care for her and manage her property. It was alleged that Florence’s property, particularly her Richmond County home, may have been invalidly transferred during the period of her mental incompetence.

Ultimately Florence’s nieces and nephew executed a document denominated a stipulation of settlement, which declared Florence to be incompetent and provided for the appointment of Marilyn Blaine, another of Florence’s nieces, as her committee. The stipulation further provided that the Richmond County home was to be transferred back to Florence, but that the nieces and nephew would share the proceeds of its ultimate sale upon Florence’s death. It was further stipulated that "since the death of his Mother, Gladys Rudolph on February 16th, 1985, James Rudolph has handled the financial affairs of Florence ellsman”. Thus, it was further provided that James was to provide "an accounting of the money and assets received and the expenses made on [Florence’s] behalf by him or anyone else in his behalf’. This stipulation was incorporated into an order of appointment.

By order to show cause dated August 25, 1988, Marilyn Blaine, the committee for Florence, commenced the instant proceeding, subsequently delineated a proceeding pursuant to Mental Hygiene Law § 78.19 (a), by which she sought an order requiring James to account for "all monies and other assets in his possession obtained directly or indirectly or over which he exercised dominion and control from Florence ellsman, including but not limited to monies obtained from individual savings, checking or money market accounts in the name of Gladys rudolph, now deceased and/or joint accounts in the name of Gladys rudolph, now deceased and james rudolph and Gladys rudolph, now deceased and Florence ellsman”. That application was ultimately denied, and this appeal ensued.

Both the Supreme Court and our dissenting colleague are of the opinion that Marilyn Blaine failed to meet her burden of establishing that the document denominated a stipulation of settlement should be set aside. We conclude, however, that there is no need to decide that issue since the instant application is not barred under the express terms of that stipulation. The December 1985 application for the appointment of a committee focused upon the transfer of Florence’s Richmond County home to Gladys and its subsequent transfer to Gladys’ children, including her son James. As the above-quoted portion of the stipulation makes clear, the accounting to which James consented thereunder involved his handling of Florence’s financial affairs after his mother’s death. By contrast, the instant proceeding concerns the handling of Florence’s financial affairs by James’ mother prior to her death, and concerns James only by virtue of the fact that he came into possession of funds after the death of his mother which it is alleged she had wrongfully appropriated. In fact, the dissent concedes that the instant application "was based upon allegations that * * * Gladys misappropriated her sister’s funds during her lifetime and that those funds had largely come into James’ hands” (Miller, J., dissenting, at 1). This is in contrast to the stipulation, which involves Florence’s real property and funds which were still in Florence’s name at the time of her sister’s death. In short, the allegations at issue here were neither raised in the prior proceeding nor covered by the stipulation. Thus the instant application cannot be denied on this basis.

We further find that the committee established reasonable grounds to believe that property belonging to Florence is under the control of James such that an accounting is warranted (see, Mental Hygiene Law § 78.19 [a]). These grounds are established principally by the affidavit of Marilyn Blaine, as supported by documentary evidence, which tracks funds that were originally deposited in the account of Florence and her late husband and wound up in either a joint account in the names of Gladys and her son James or in the personal checking account of James. At the time of the alleged misappropriations, Florence’s account contained funds in excess of $95,000. Evidence was also submitted tending to establish that at the time of these transactions Florence was not in complete control of her faculties.

In light of the foregoing, the application to compel James to account for the moneys in his possession or over which he exercises dominion and control which were obtained directly or indirectly from Florence should have been granted.

Thompson, J. P., Brown and Fiber, JJ., concur.