Holocaust Survivor Victimized By Courts?

The New York Appellate Division for the First Judicial Department has held that sanctions against one of two attorneys who represented an incapacitated person were proper.

The court remanded in order to grant the firm fees.

Although it is a primary focal point of the dissent, which believes that neither Citak should be sanctioned for his “missteps” and that the court below is to blame for everything that transpired, the issue of whether the court erred in entering the coguardianship order, without either confirming the consent of Dr. Dworecki or conducting a capacity hearing, is not before us. Indeed, the attorney who replaced Citak & Citak as counsel for Dr. Dworecki represented to the court at the sanctions hearing that she discussed the temporary coguardianship at length with Dr. Dworecki and “was very confident . . . that she had no desire to appeal.” Nor, under the particular circumstances of this case, where Donald initiated, participated in and consented on behalf of Dr. Dworecki to the procedure adopted by the court, then denied his role and falsely accused the court of wrongdoing and fraud, would any such error, in and of itself, excuse the sanctionable conduct at issue, including Donald’s material false statements in support of his applications.

The facts

in July 2012 petitioner, as Vice President of Nazi Victims Service Programs of Self Help Community Services, Inc. (Self Help), sought to have a guardian appointed for the person and property of Dr. Dworecki, age 94. Self Help had been providing community based services to Dr. Dworecki since 2002 and was concerned that her short term memory, judgment, and ability to perform the activities of daily living had been declining and that she was refusing to obtain necessary additional home care services. This included Dr. Dworecki’s inability to cook, clean her apartment and person, and manage her medications by herself.

Dr. Dworecki’s friend and financial advisor, Edward Muster, procured Citak & Citak to represent her in opposing the petition. Mr. Muster is the primary beneficiary under Dr. Dworecki’s Last Will & Testament, executed on August 11, 2010. Although Mr. Muster claims that he was not present when the will was executed, he states in an affidavit that “[p]rior to the preparation of the Will, [Dr. Dworecki] told me what she wanted included in the Will. As on other occasions, I followed [her] instructions.” Thus, it appears that he was responsible for its preparation..

The Citaks also acknowledge that on August 7, 2012, after being retained to defend this proceeding, they prepared, and filed in the Surrogate’s Court, a new will for Dr. Dworecki which did not materially change the terms of the 2010 will.

The attorneys were accused of filing a frivolous appeal.

The record amply supports Supreme Court’s finding that filings and remarks made by counsel during oral argument contained a number of inaccurate and outright false material statements in support of the two orders to show cause, accusing the court of misconduct and dereliction in its duties that were devoid of merit, and undertaken “primarily . . . to harass or maliciously injure another,” thereby warranting the award of costs and sanctions for engaging in frivolous conduct (22 NYCRR 130-1.[1c][2]). What is disturbing is the fact that the court order appointing a temporary guardian for the AIP, and the focus of counsel’s attack, was consented to by Dr. Dworecki and counsel before the court. It should be noted that following the April 30, 2013 court order imposing costs and/or sanctions, the Citak firm voluntarily withdrew as counsel to Dr. Dworecki.

At the sanctions hearing, it was conceded by counsels’ attorney that statements accusing the court of fraud were unjustifiable, acknowledging “the inappropriate style and the disrespectful tone” of the submissions. Nevertheless, it is equally clear that the statements are attributable to Donald Citak, and there is a lack of record support for the imposition of an equivalent sanction against Burton Citak, who neither argued before the court nor submitted an affirmation in connection with the respective applications. Finally, further proceedings are required to determine the appropriate costs to be awarded (22 NYCRR 130-1.2), to reduce the award of costs and sanctions to a judgment and to set the reasonable amount of legal fees payable to Citak & Citak for their representation of Dr. Dworecki prior to the filing of the frivolous orders to show cause.

An impassioned dissent

The first error, which is not the focus of this appeal but which informs all else that happened here, was the unlawful imposition of an article 81 guardianship on a 94-year-old Jewish survivor of Nazi Germany against her will, without her consent and without a hearing.

The second error was made when the court imposed punitive sanctions and costs upon the elderly woman’s lawyers for protesting the court’s action in their motion papers. And, while these lawyers used strong words to convey their opposition to the unlawful order, they were only that — words — and did not cause any disruption to the court other than to point out the necessity of a statutory-mandated hearing to protect their client’s due process rights. For this, they were hammered with severe costs and sanctions by an irate court…

In its haste to impose its own sense of what would improve the life of the Alleged Incapacitated Person (AIP), Supreme Court ignored the AIP’s repeatedly expressed, deep desire for self-determination and independence. The court simply failed to appreciate or take into account the fears and concerns of this then-94-year-old German-Jewish Holocaust survivor, Dr. Eva Dworecki, whose family had been forced to flee Germany, surrendering all of their assets to the Nazi government, and who as a result remains suspicious of forced intrusions and financial claims asserted by authorities. She explicitly did not want strangers, appointed by government authorities, taking control of her assets and her personal decisions. Now, at the end of her days, she is being met with a dazzling array of providers eager to “assist” her, for which they can claim payment from her carefully conserved estate.

The majority’s assertion that it “fully appreciate[s] [Dr. Dworecki’s] fears and concerns” is a hollow protest. Supreme Court failed to consider the unique perspective Dr. Dworecki brought, as a result of her family’s experience, to the type of “assistance” at issue here. While some elderly people might welcome such attention, assistance, and intrusion, Dr. Dworecki did not; her past experiences made her ambivalent and fearful about giving up control of her assets and decision-making. Not only did Supreme Court ignore the doubts, fears, ambivalence and concerns she expressed openly to the court, but, now, the majority is perpetuating that lack of sensitivity.

The dissent recounts the life story of Dr. Dworecki’s father – a wealthy winner of the German equivalent of the Medal of Honor who had prospered until the Nazis gained power. The family was able to flee in 1939.

On sanctions

A person who has not been determined to be incapacitated has every right to know the expenditures being made from her funds by someone else. The paternalistic approach suggested by the guardian and approved by the court may have been intended as kindness, but it nevertheless amounted to a fraud upon Dr. Dworecki. Indeed, this Court has disciplined an attorney for a well-meaning misrepresentation to his client, notwithstanding the advice of the client’s psychiatrist that it would be in the client’s interest that the attorney do so (see Matter of Rochlin, 93 AD2d 683 [1st Dept 1983]); the court’s approval of the guardian’s expressed intent to avoid disclosing expenditures because Dr. Dworecki might become upset, a lay conclusion unsupported by psychiatric or other expert opinion, is no more justified when sanctioned by the court.

(Mike Frisch)