Month: October 2017

WHY BLOG ABOUT ARTICLE 81 GUARDIANSHIP

What excitement, a N.Y. court blog.  So 1997.  Who does that anymore? What is a blog anyway? Is it stream-of-consciousness musings, like a dopey Larry King column? Remember those? Something like:

 

“Why do people say that you can’t put cheese on fish sauce? Did you ever have au gratin crab or shrimp? Delicious. What’s the difference? Next time you’re in a restaurant….etc”

Nah, none of that here. I’ll do my best, but bear with me. I’m old. I was stabbed to death by greedy centurions in 193 AD. [They got away with it too; even then Dennis Quirk had enormous clout] You think I should bother trying to keep abreast of the latest and greatest? To hell with that.  I may be dead, but I’m not doing Facebook. That’s final.

Let’s talk about the recent past, the last two months, August and September. It was Janet Defiore’s Terrible, Horrible, No Good, Very Bad Summer. And like so many bad things, it came in threes. [Yeah, Gallia est omnis divisa in partes tres. Got that out of my system. Any idea how sick of this phrase we ancient Romans are?]

It started with that Bookstaver guy butt-dialing to a NY Post Reporter an account of how he maintained a pricey no-show job, courtesy of a deal between the outgoing Chief Handsome John Lippman and J. Difiore.

The butt-dial guy was being paid good money to do PR. How good at this was he, do you suppose?

This happens at a time when the Court is whining about not having the money for luxury items, like Part Clerks. [This whining has been going on since 470 BCE].  Fortunately, it was August, when most  NY Times readers  had not yet returned from the Hamptons.

But this was followed by the fiasco in Staten Island, with AJ McMahon, a real charmer by all accounts, meddling in criminal cases. This, after the Powers That Be in the Office of Court Administration [“OCA”] went along with the fiction that McMahon would only handle civil cases in the Isle of Staten, and voluntarily leave the criminal docket to a different A.J., because McMahon’s husband is the District Attorney.   Sure, that’ll work. The only part of this that wasn’t predictable was the taping of the whole thing by a disgruntled chief clerk. Who is gay, and didn’t appreciate mockery about it from Ms. M., who is clearly a class act.  She shopped cases to judges more likely to convict, a practice which is endemic, and which I’ll come back to in a future post.

Then Brooklyn did what it does so well – embarrass the rest of the state court system – when it was revealed that  a Supreme Court Judge, Noach Dear was allowed to sit in the lower, Civil Court [what, did he feel unworthy and want his salary lowered?] on days when the Orthodox had their cases on. Strictly coincidental it wasn’t.  As a politician, these were his Peeps, now his personal defendants of choice.  Again, a Judge drifting over to an area where he/she wasn’t supposed to be.

Hilariously, the Post seemed to imply that Dear did this just because he was uncontrollable, deciding on his own to stroll into Civil Court on nights when defendants of a particular ethnicity had their cases on. The Post  urged the Court System to “rein him in.”  There is no administration in Kings apparently, and no one is in charge of assigning cases or judges;  Judges decide when and where to show up, and they summon forth the cases they want to hear that day.  Next week, Dear might get the urge to drop in at Family Court.  If only there was some way of tracking his movements. Do Post readers actually believe this? Nah, they’re already turned to Page Six.

How would you like to be some plaintiff suing a Hasidem merchant and seeing that the defendant brought his own hometown umpire?  [the City of New York picks its own favorite Judges to hear their cases, but I digress]. There is a well-founded, although distasteful rumor that the clerks in Kings have come to refer to those days as “Jewsdays.”

My good friend The Google tells me that the Administrative Judge for Civil Term in Brooklyn is Lawrence Knipel. Hello Larry. And Larry Marx [Hello Second Larry] and J. Difiore have no idea where Judges are being assigned on the other side of the East River? The telegraph lines went down years ago I guess. Forget it Jake; its Brooklyn.

Here’s what’s going to happen, and I say this with the assurance of a Roman Emperor who lasted all of 87 days [People Tell Me that no Emperor was ever better than me at predicting things,  at least for 86 days]- Most likely, nothing will happen, until there’s another scandal. Then,  J. Difiore or Larry Marx  will issue some sort of silly edict – let’s say something that tells Court employees that they better show up for work, and not be like Bookstaver, and a nicely printed memorandum will circulate to thrill the hearts of men, or something.

Oh, we did that already?  Sorry.

Better yet, let’s give all of the employees a new form to fill out! How they love forms. That’s the ticket. Then we can hire more clerks to process the forms? Oh, no, we won’t do that. The same clerks we have now will do the processing. But we’ll hire several new supervisors downtown to oversee the form process. Yes, this will work wonderfully.

There will be no impact from all this fancy managin’ on the places that are most out of control, which are, for the most part, those areas lying off the continental US mainland. But this should suffice for their purposes, since the few entities paying any attention to the court system apparently like Janet Di Fiore. So far.

If she should ever becomes governor, that hair will become nationally famous.  But for now, all is well, and we’ll turn again to our affairs.  Hell, we already have.

This happens over and over again – it happened a little while back in the Bronx, when the Times happened to notice that the Criminal Court didn’t do anything, so they did the old misdirection play. They scape-goated a good judge, Alvarado, who was trying like the devil to get his Judges to take the bench on time,  and changed administration, amidst much fan fare. They announced victory later after a decent interval,  with no change whatsoever, except that the newspapers had lost interest, which was the only goal. Running out the clock again. The main problem is that all of this undermines any argument the courts can make about getting more money and more personnel. Why should we waste money on the likes of you, Court System, or on Judges who take dubious paid leaves of absence that last for years, as was the case recently in, oh, Brooklyn, right.  Cuomo despises the Court system, and this plays right into his hands. Happy to help you out,  Governor.

The amazing thing about our Court System is how the counties that screw up the most – I’m training my steely-eyed gaze here on the East Bank of the East River — tend to produce most of the power brokers in OCA. Nice job; here is your reward.

Next Time, or the time after that, I’ll present my ideas for solving every damn problem in the New York Court System, effortlessly and at no cost, because I’m here to help. Remember, pars sanitas velle sanari fuit. Whatever.

I STARTED THIS DOPEY COURT BLOG AND NO ONE COULD BELIEVE WHAT HAPPENED NEXT

I’m using the blog name Pertinax instead of my own, because, well, its easier. Had to pick something.  He was a Roman Emperor who meant well, but only lasted a few weeks because his reform efforts got the powers that be pissed, so he was dispatched after 90 days or so by greedy centurions. Hate when that happens.

It’s pretty simple: I have a big mouth and I work in the Court System in NYC. Hence this court blog.  What the world needs now.

I’m going for a balance of constructive ideas, and scurrilous observations.  There are better ways that we could be doing things, especially in Guardianship.  The scurrilous part? Well, there are things that explode in the NY Courts that are relegated to back pages by the media, or unknown to the public, or simply ignored, because we all have better things to do, and there’s always another Yankee game. [Maybe not].

I’m no scholar and I don’t know any. But I have some practical experience in the system, so why not me? I did run an empire after all [a pretty damn Evil one, too].  And I’m not selling anything. Maybe some Pertinax tee shirts.

This is mostly going to be about Article 81 Guardianship, which is a desert island floating several miles off the coast of the rest of the court system. An anomaly, in other words, or in this case, one word.

Here’s one well-known example of what I mean by anomaly: Our Courts are adjudicative bodies; we resolve disputes. Eventually.  You fell on my sidewalk and want 20 million dollars; I say you didn’t and don’t want to pay you anything. The Court, and very rarely, a jury if it gets that far, decides for one party or the other, or more likely it compels a settlement, the dispute is resolved. Fin.

Guardianship is different. It starts with a hearing/trial, not years later, but very soon after the case starts, and concludes with a finding, more than 90 percent of the time, that the person is incapacitated and needs a Guardian. That happens, hopefully, in about a month or two. We now have an incapacitated person, an “IP”. Or we have a person with disabilities who knows he needs help, who consents to become a “PING”, or “Person in Need of a Guardian”.

In either event, we now have a Guardian for the Court to baby sit, or monitor. A judgment is entered which appoints the Guardian and sets out what the Guardian is allowed to do.

For every other kind of case, medical malpractice, auto accident, breach of contract, whatever, the Judgment ends the case. You won, here’s your money, or you lost. Next case. [Okay, if I refuse to pay the Judgment, or if there’s an appeal , we go on, but  you get the point.

With Guardianship, we have a Judgment right away – not at the end of the case – but this means that the fun and games are just starting. And we’re really not going to be resolving disputes anymore. Well, we are, but they are usually collateral disputes, like, Is it time for the I.P. to be moved out of her apartment and permanently placed in the nursing home? The Really Big Question, lack of capacity, has already been decided. So for the most part, we’re now monitoring the Guardian. Endlessly demanding of the Guardian, “did you do your homework?” [e.g. file annual accounts, take the guardianship course, spend the Incapacitated Person’s money appropriately, whatever it is]. And we have to compel them to comply with our orders and with the law. We are now in the time-consuming compliance business, something we were not designed for, and which, let’s face it, we are no damn good at.

The Guardians are always our ‘students’ and we are their fifth grade teachers, until the IP doesn’t need a guardian any more, or until, more usually, the IP dies. And then we have to force the guardian to close the case out properly, which is frequently the least successful part of the process from the Court’s point of view.  In many cases, Guardians simply ignore the Court, which has the enviable choice of taking hours to drag a final account out of [presumably] grieving family members, or getting busy with something else. Most Judges opt for the latter.

There are other differences of course. Alleged Incapacitated Persons are wards of the Court.  The fellow on your front sidewalk with the broken leg,  isn’t. If your personal injury lawyer screws up your case, we dismiss it, and don’t even say goodbye nicely.

If you petition for a guardianship, and don’t show up on the return date, well…..its not that simple. And if a Guardian stops doing what he or she is supposed to be doing, the Court can’t just ignore the whole thing: “Its your Grandma, buddy. If you want to ignore her, it’s your problem.” Nope. It’s ours.We’re all wrapped up in your family business now, and can’t walk away.

How terrible/ineffectual are the Courts — which were not designed for this and don’t have the resources needed to do it — at compelling Guardians to do their jobs? That’s the next post, or maybe the one after the one after that.

By the way, if you haven’t yet read the article in the New Yorker (“How the Elderly Lose Their Rights”) about  Nevada’s disgraceful  lawyer-free Guardianship  proceedings, do so.  It will make you proud, or at least relieved, to be a New Yorker, which is a novel sensation. At our worst, we’re never that bad.  I can say that with some confidence, but not over-confidence.

Thought I’d take the high road for this first post. We’ll get to the cheap shots soon enough. Be patient. I’m a Roman emperor who was stabbed to death almost 2000 years ago, and I get tired.