CIVIL CONFINEMENT FOR CONTEMPT BY LANDLORD

 Allen v. 219 24th ST. LLC, 2023 NY Slip Op 32232 - NY Co City Court, Civil Court 2023:

"MICHELLE D. SCHREIBER, JHC.

After trial in this HP proceeding, pending since July 2019 as a result of three vacate orders placed by the New York City Department of Buildings ("DOB") as to the three buildings at issue herein, in a decision/order dated May 6, 2020 (NYSCEF #6) the respondents/owners were ordered inter alia, to correct the conditions necessary to lift the vacate orders within six months, were found to have engaged in harassment based upon their deferred maintenance of the buildings with the goal of emptying them, and were directed to pay $21,000 to each of the six petitioners.

In December 2020 the petitioners and DOB moved for contempt. In a decision/order dated February 16, 2021 (NYSCEF #47), the motions were granted to the extent of finding there was a prima facie showing of all four elements of civil contempt by the movants, and directing a hearing on the issue of the respondents/owners alleged inability to comply with the prior order of the Court; the hearing was limited to evidence uncovered in November 2020 and thereafter during the partial demolition of the buildings. In addition, the Court ordered a hearing on DOB's motion to enforce three Emergency Orders issued by the Commissioner in December 2020. The hearing was held over several days from May 5 through July 21, 2021. In a decision/order dated September 2, 2021, the Court held inter alia that the respondents/owners were in civil contempt of the May 6, 2020 order; directed the respondents/owners to perform the work required by the DOB Commissioner on the three emergency orders dated December 30, 2020; and allowed them to purge the contempt by complying with the order by March 1, 2022.

DOB thereafter moved by Order to Show Cause dated June 30, 2022 to commit Clara Sokol and Abraham Lokshin to civil jail for civil contempt until they have complied fully with the orders of May 6, 2020 and September 2, 2021; and to assess civil penalties against each respondent in the amount of $1,000.00 per day until they comply with the orders. The motion was granted (NYSCEF #150) to the extent of directing the parties to appear with counsel in Part B for a hearing to determine whether Clara Sokol and Abraham Lokshin should be apprehended and arrested; the sole issue at the hearing was the respondents'/owners' compliance with the decision/order dated September 2, 2021. On the eve of the last hearing date in November 2022, the respondents moved for an extension of time to complete the repairs and have the vacate orders lifted. The motion was denied in a decision/order dated May 22, 2023 (NYSCEF #203). The hearing was conducted over several days from November 2022 through April 2023; posthearing memoranda were submitted on May 1, 2023. Based upon all of the foregoing and the credible testimonial and documentary evidence the Court makes the following findings of fact and conclusions of law.

The respondents' first witness was George Cambourakis, a structural engineer. His testimony was brief as he admitted that during a break in the hearing he had discussed his testimony with his counsel. Mr. Cambourakis testified that he began work on the project in September or October 2021, and that he prepared structural drawings and reports for all three buildings. He claimed to be at the site on a regular basis and yet lacked relevant details about many of the conditions at the building. He attempted to explain his lack of detailed knowledge of plumbing, electrical issues, the roofs and debris removal, by asserting he was focused on the structural issues. He testified that he determined that work should proceed on one building at a time claiming without any evidence that this determination was supported by DOB. He then admitted that DOB never said to do one building at a time, but stated that he stood by his decision. He testified candidly that he was aware that the vacate orders have not been lifted, and admitted that in two of the three buildings very little work had been done, asserting that in one of the buildings the work was 80% complete.

The respondents also called Shalom Rogatsky as a witness. He testified that he is a general contractor and a licensed home improvement contractor. Mr. Rogatsky stated that he began work on the project in September 2021 and claimed that there were issues obtaining materials for the project which caused delays. He then admitted that these issues were present only at the beginning of the work. He admitted that he was unable to get a sufficient number of workers at the site because they wanted too much money. Mr. Rogatsky candidly admitted that work was not completed in the three buildings including electrical, plumbing, boiler replacement and roof work.

The respondents' final witness was Abraham Lokshin, a named respondent and a member of the LLC. Mr. Lokshin began his testimony by admitting that the job was not completed. While asserting that the project has been his whole life in the last couple of years, his candid statement that the job was not complete belied his alleged dedication. He admitted further that the work would not be completed for another three to four months and that he was aware the vacate orders had not been lifted as of the time of his testimony.

At the conclusion of the presentation of testimony by the respondents DOB moved for a directed verdict and presented no evidence.

The respondents were initially given until November 6, 2020 to effectuate all necessary repairs to have the vacate orders lifted. After being found in contempt the respondents were allowed to purge the contempt by doing all necessary work to have the vacate orders lifted by March 2022. As of April 2023 the respondents have failed to purge the contempt and the vacate orders have not been lifted. Accordingly, this Court finds it necessary, in order to compel compliance with the orders of this Court, to direct that respondents Sokol and Lokshin be committed to civil confinement until such time as the contempt is purged. The respondents have been on notice of this potential confinement since the decision/order dated September 2, 2021 which found them in contempt and stated that it is "ORDERED: that upon failure to comply, petitioners and DOB may make an application to the Court which will result in any sworn Sheriff of any County of New York State, to apprehend and arrest Clara Sokol and Abraham Lokshin, and to keep her and him committed in custody in the common or county jail in which he or she be found and within forty-eight (48) hours from the time of arrest, exclusive of weekends and holidays, and for her and him to [be] brought before the undersigned for a hearing at Part B, New York County Civil Court, Room 583 at 111 Centre Street, New York, NY 10013...."

PROPOSED NEW RULE FOR LLC DISCLOSURE

The LLC Transparency Act, which was passed by the State Legislature in late June, requires LLCs to disclose the identity of their beneficial owners when they register the company with the New York Department of State. That information would become publicly available in a searchable database. 

BILL NUMBER: S8439B

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the limited liability company law, in relation to the
disclosure of beneficial owners of limited liability companies

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill aims to modernize disclosure laws for limited liability compa-
nies by defining beneficial ownership and requiring the disclosure of
beneficial owners.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one is the short title.

Section two amends the LLC law to define beneficial ownership, exclude
certain individuals from qualifying as beneficial owners, and capture
indirect forms of beneficial ownership, including through trusts and
intermediaries.
              

Section three amends the LLC law to require that a document identifying
the beneficial owners of an LLC be included with the documents necessary
to organize an LLC in New York State.

Section four amends the LLC law to require an amendment to the documents
necessary to organize an LLC in New York State if there is a change to
the beneficial owners of the LLC.

Section five amends the LLC law to create a new section requiring the
disclosure of beneficial ownership and permits the LLC to file a copy of
the same form they file with the federal government.

Section six amends the LLC law to require that a document identifying
the beneficial owners of an LLC be included with the documents necessary
to organize a foreign LLC in New York State.

Section seven amends the LLC law, pertaining to foreign LLCS, to require
an amendment to the documents necessary to organize a foreign LLC in New
York State if there is a change to the beneficial owners of the foreign
LLC.

Section eight amends the LLC law, pertaining to foreign LLCS, to create
a new section requiring the disclosure of beneficial ownership and
permits the foreign LLC to file a copy of the same form they file with
the federal government.

Section nine is the effective date.

 
JUSTIFICATION:

Anonymous shell companies have been exploited as vehicles for money
laundering, tax evasion, organized crime, terrorist financing, and other
forms of corruption for decades. In the United States, the most common
form of a shell corporation is the limited liability company ("LLC"). To
form an LLC, a person needs less personal information than is required
to obtain a library card. The true owners of LLCs can be concealed even
further through trusts and nesting layers of corporate intermediaries,
facilitating money laundering, crime, and tax avoidance as assets become
washed through anonymous legal entities. Billions of dollars from the
illicit gains of international kleptocrats have been washed through LLCs
in the United States, becoming nearly impossible to trace without
tremendous effort. These phenomena have been thoroughly documented by
leaks and investigations such as the Panama Papers in 2016 and Pandora
Papers in 2021.

Anonymous LLCs have also been vehicles for narcotics and human traffick-
ers to launder their illicit profits and escape accountability. The
sociologist Adam Travis has documented an "LLC effect" in housing
markets, which is a statistically significant correlation between code
violations and the prevalence of LLC landlords caused by the combination
of anonymity and limited liability protections. This effect was demon-
strated by a 2019 Senate investigation into housing code violations in
the Hudson Valley.  Anonymous LLCs have also continued to facilitate
campaign finance violations despite recent legislation prohibiting this
practice.

Beneficial ownership transparency, which includes disclosure and public
reporting, is the internationally-recognized gold standard for combating
these forms of crime and corruption. This bill would make New York a
national leader in terms of addressing the public policy problems
created by anonymous shell corporations. This legislation would be a
significant deterrent to corruption, fraud, and organized crime. It
would ease the investigative burden on law enforcement authorities pros-
ecuting financial crimes and the regulatory burden imposed on businesses
required to report the beneficial owners of their customers pursuant to
federal law, such as title agencies and financial institutions. Tenants
would be able to know who their landlord is, researchers and policy-mak-
ers would be better able to understand business and investment patterns
otherwise made opaque by LLCs, and the government would be able to veri-
fy the beneficial owners of LLCs involved in procurement processes.

 
PRIOR LEGISLATIVE HISTORY:

This is a new bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This bill is effective 365 days after becoming law, provided however
that the repeal, amendment, or enactment of any rule or regulation
necessary to effectuate the meaning or purpose of this law on its effec-
tive date is authorized to be made or completed before its effective
date.

PROPOSED MORATORIUM ON TAX FORECLOSURES

BILL NUMBER: S7549A has already passed Senate and Assembly.

SPONSOR: THOMAS
 
TITLE OF BILL:

An act relating to a temporary in rem foreclosure moratorium; and
providing for the repeal of such provisions upon the expiration thereof

 
PURPOSE:

Institutes an in rem foreclosure moratorium in response to United States
Supreme Court Case Tyler v. Hennepin County, Minnesota.

 
SUMMARY OF PROVISIONS:

Section 1 explains the legislative findings, and the Legislature's
conclusion that there should be a moratorium placed on in rem foreclo-
sures as a result of the legal uncertainty that exists following the
Supreme Court's decision in Tyler v. Hennepin County, Minnesota.

Section 2 institutes an in rem foreclosure moratorium and provides that
no tax enforcement officer may convey title to any tax-delinquent parcel          

of real property owned by a tax district, which has been the subject of
an in rem tax foreclosure proceeding, to the treasurer or other official
of the tax district, in any in rem foreclosure action which was filed
and adjudicated prior to the effective date of the act, and prior to its
expiration date.

Section 3 provides that any properties that a tax district acquired
title to prior to July 1, 2023 pursuant to an in rem tax foreclosure
proceeding may be auctioned by the tax district if the surplus funds are
held in a segregated trust account that's maintained by the chief fiscal
officer of the tax district until the moratorium is repealed on June 30,
2024.

Tax districts that opted out of the state law and have local procedures
that govern their tax foreclosures will be able to continue those fore-
closures so long as they have, or they subsequently institute, a legal
mechanism that provides for the return of the surplus funds that is
compliant with the Tyler v.  Hennepin decision.

Section 4 provides that the act is effective immediately and will expire
on June 30, 2024.

 
JUSTIFICATION:

Tyler v. Hennepin County was a United States Supreme Court case decided
in May, 2023 which ruled on local governments' ability to seize property
for unpaid taxes, when the value of the property is greater than the tax
debt. The Court unanimously held that the surplus value (the amount the
property sells for above the value of the property) are protected by the
Fifth Amendment's Takings Clause.  Effectively, this means that local
governments must return surplus funds to homeowners.

In New York, tax foreclosures occur when a property owner is delinquent
on their taxes and does not pay the delinquency by the redemption date.
Localities then either foreclose on the property and sell it at auction
or utilize a tax lien sale where the tax liens are sold to third party
buyers. Some municipalities return the surplus funds, while others do
not. In the wake of Tyler v. Hennepin, certain areas of New York's stat-
ute are incompatible with this recent Supreme Court precedent. As issues
of real property tax, delinquencies, in rem foreclosures, and the asso-
ciated surpluses are complex issues of policy and law, the Legislature
seeks to provide time for the various stakeholders to discuss the tax
foreclosure process and how best to change New York's statute; as such,
this legislation institutes a moratorium on most in rem foreclosures
until June 30, 2024.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None to the state or localities.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall expire and be deemed
repealed on and after June 30, 2024.

CAN YOU VACATE A DEFAULT OF OVER 20 YEARS

All depends on the circumstances, the grounds for vacatur and then there can be caveats.

HERSZDORFER v. Maimonides Med. Ctr., 2023 NY Slip Op 50623 - Kings Supreme Court 2023:

"Determination of Justice Walker's OSC (Mot. Seq. Four)

Defendant's Request to Vacate Default Judgment Under CPLR §5015(a)(3)

As noted, a portion of Justice Walker's OSC sought an order, pursuant to CPLR §5015(a)(3), vacating the default judgment "based on [the alleged] misrepresentation and misconduct of [plaintiff] in obtaining such default judgment." As grounds for plaintiff's alleged "misrepresentation and misconduct," defendant contended that: (1) plaintiff's service of the note of issue on January 10, 1996 at the 8th Avenue address was improper because plaintiff knew (or should have known) that defendant had not conducted business at that address for more than a year; (2) plaintiff failed, "upon information and belief," to serve the order on default with notice of entry on defendant; and (3) plaintiff further failed, likewise "upon information and belief," to serve the default judgment with notice of entry on defendant (Justice Walker's OSC, pages 3-4, Subsection b[i]-[iii]).^[17]

CPLR §5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of "fraud, misrepresentation, or other misconduct of an adverse party." Here, the circumstances cited by defendant did not establish that plaintiff procured the default judgment by fraud, misrepresentation, or other misconduct. Contrary to defendant's first contention (in Subsection b [i] at pages 3-4 of Justice Walker's OSC), plaintiff's service of the note of issue on January 10, 1996 at his prior address on 8th Avenue did not amount to fraud, misrepresentation, or other misconduct, particularly in light of defendant's admission that he had notified the USPS of the forwarding address to the Ft. Hamilton Parkway office. Defendant's second contention (made upon "information and belief" in Subsection b [ii] at page 4 of Justice Walker's OSC) that plaintiff failed to serve him with the order on default with notice of entry was refuted by plaintiff's (former) counsel's affidavit of service, dated October 12, 1993, averring that defendant was served with a copy of the order on default, with notice of entry, at the 8th Avenue address by first-class mail (NYSCEF Doc. No. 21 at page 85 of 99). Third and finally, plaintiff's conceded failure to serve the default judgment with notice of entry on defendant did not amount to fraud, misrepresentation, or other misconduct. Thus, vacatur of the default judgment pursuant to CPLR §5015(a)(3) is unwarranted. Compare Li Xian v. Tat Lee Supplies Co., Inc., 126 AD3d 424, 2 N.Y.S.3d 344 (1st Dept. 2015) (cited by defendant) ("[The] Defendant demonstrated that plaintiffs' motion for a default judgment was granted, in part, based on plaintiffs' counsel's incorrect representation that [the] defendant's old address was the `only known' address for service of the additional summons . . ., when, in fact, plaintiffs' sublease provided another address for service of legal notices on [the] defendant.") (underlining added).

Defendant's Request to Vacate Default Judgment Under CPLR §§317 and 5015(a)(1)

Alternatively, defendant (via Justice Walker's OSC) sought vacatur of the default judgment pursuant to CPLR §§317 and 5015(a)(1), on the grounds of a reasonable excuse and a potentially meritorious defense. CPLR §317 states, in pertinent part, that "[a] person served with a summons other than by personal delivery . . . who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he [or she] did not personally receive notice of the summons in time to defend and has a meritorious defense" (underlining added). Defendant's reliance on CPLR §317 as a predicate for vacatur of the default judgment is unavailing because he sought to vacate it by Justice Walker's OSC, dated May 9, 2016, more than eighteen years after its entry on January 5, 1998. See Wells Fargo Bank, N.A. v. Tricarico, 139 AD3d 722, 32 N.Y.S.3d 213 (2d Dept. 2016); Anderson v. GHI Auto Serv., Inc., 45 AD3d 512, 845 N.Y.S.2d 129 (2d Dept. 2007).^[18]

Turning to CPLR §5015(a)(1), the Court notes that a CPLR §5015(a)(1) motion must be "made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party." Inasmuch as the default judgment was never served with notice of entry on defendant, the one-year deadline for making a CPLR §5015(a)(1) motion did not begin to run. Therefore, defendant's explicit request for vacatur of the default judgment under CPLR §5015(a)(1) was timely. To the extent defendant implicitly sought vacatur of the order on default, such request would be untimely because, as stated above, the order on default with notice of entry was served on defendant on October 12, 1993, or more than twenty years before Justice Walker's OSC of May 9, 2016.

The timeliness of defendant's request for vacatur of the default judgment under CPLR §5015(a)(1) does not end the inquiry, however. "A party seeking to vacate a default judgment pursuant to CPLR §5015(a)(1) must demonstrate [1] a reasonable excuse for the default and [2] a potentially meritorious defense to the action." Gleizer v. Gleizer, ___ AD3d ___, ___ N.Y.S.3d ___, 2023 NY Slip Op. 02648 (2d Dept. 2023). "The determination of what constitutes a reasonable excuse is generally left to the sound discretion of the Supreme Court." Blazo v. Wyckoff Hgts. Med. Ctr., 125 AD3d 705, 4 N.Y.S.3d 99 (2d Dept. 2015). Here, defendant met the "reasonable excuse" requirement because (as discussed below) he was not served with notice of inquest in accordance with CPLR §3215(g)(1), nor was he served with the default judgment with notice of entry. Defendant, however, failed to meet the "potentially meritorious defense" requirement for three reasons. First, defendant failed to submit an expert affirmation.^[19] Second, he failed to submit any portion of his medical records for plaintiff's decedent; particularly, the portion reflecting his contention (in ¶ 30 of his opening affidavit at NYSCEF Doc. No. 6) that "[w]hen appropriate, [he] referred [plaintiff's decedent] to a specialist." Finally and crucially, not only were his own affidavits averring to the absence of medical malpractice self-serving and conclusory (as reproduced in the margin^[20]), but they were also without probative value because his license as a physician was revoked in November 2000, or approximately fifteen years before he moved to vacate the default judgment in May 2016. Thus, vacatur of the default judgment pursuant to CPLR §317 and/or 5015(a)(3) is also unwarranted. See generally Langona v. Village of Garden City, 203 AD3d 1038, 162 N.Y.S.3d 741 (2d Dept. 2022); Diaz v. Ralph, 66 AD3d 819, 886 N.Y.S.2d 617 (2d Dept. 2009).

Defendant's Request to Vacate Default Judgment in the Interests of Substantial Justice

Lastly, defendant sought to invoke this Court's inherent discretionary powers to vacate the default judgment in the interests of substantial justice. It is well established that "[i]n addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice." Woodson v. Mendon Leasing Corp., 100 NY2d 62, 760 N.Y.S.2d 727 (2003). "A motion to vacate a default is addressed to the sound discretion of the motion court." HSBC Bank USA, N.A. v. Alexis, 195 AD3d 600, 149 N.Y.S.3d 517 (2d Dept. 2021).

Here, vacatur of the default judgment is appropriate, in the interests of substantial justice, for two reasons: (1) lack of service on defendant of the default judgment with notice of entry; and (2) lack of service on defendant of notice of inquest — both being the necessary predicates to the enforceability of the default judgment against defendant. "[I]t is axiomatic that before an order [or judgment] may be enforced, notice of such order [or judgment] must be given to the party against whom it is sought to be enforced." Wells Fargo Bank, N.A. v. Frierson, 150 AD3d 1045, 55 N.Y.S.3d 332 (2d Dept. 2017); see also CPLR §2220(b). "Where the rights of a party are or may be affected by an order [or judgment], the successful moving party, in order to give validity to the order [or judgment], is required to serve it on the adverse party." McCormick v. Mars Assoc., Inc., 25 AD2d 433, 265 N.Y.S.2d 1004 (2d Dept. 1966). Inasmuch as the default judgment with notice of entry was never served on defendant, its vacatur is appropriate, as more fully set forth in the decretal paragraphs below. See Fried v. Carlucci & Legum, Cascione, Chechanover & Purcigliotti, P.C., 309 AD2d 829, 766 N.Y.S.2d 83 (2d Dept. 2003).^[21]

The additional reason for vacatur of the default judgment in the interests of substantial justice is a lack of notice to defendant of the underlying notice of inquest. Where, as here, more than one year had elapsed since defendant's default in appearing and answering, he was entitled to at least five days' notice of the time and place of the inquest pursuant to CPLR §3215(g)(1). See New York Tel. Co. v. Don Siegel Const. Co., Inc., 1 AD3d 329, 766 N.Y.S.2d 874 (2d Dept. 2003); Astron Steel Fabrications, Inc. v. Kent Restoration, Inc., 283 AD2d 381, 723 N.Y.S.2d 860 (2d Dept. 2001). Plaintiff's reliance on 21st Mtge. Corp. v. Raghu, 197 AD3d 1212, 154 N.Y.S.3d 84 (2d Dept. 2021), in support of his contrary position, that notice of inquest was not required to be served on defendant, is misplaced. The Second Department's holding in 21st Mtge. Corp. that "CPLR 3215(g)(1) did not require the plaintiff to give [the defendant] notice of its motion to confirm the referee's report and for a judgment of foreclosure and sale," is limited to the mortgage-foreclosure context, as illustrated in the margin.^[22]

All the foregoing said, there are two relevant caveats. First, vacatur of the default judgment requires that an inquest be held anew. Defendant will be "entitled at [such] inquest to cross-examine witnesses, give testimony, and offer proof in mitigation of damages." Golden v. Romanowski, 128 AD3d 1009, 9 N.Y.S.3d 653 (2d Dept. 2015). Second, vacatur of the default judgment does not in any way affect the continued validity of the order on default. Defendant's contentions that the complaint was insufficient and was unaccompanied by a certificate of merit are precluded by the order on default which remains in full force and effect.'

SEEKING TO TREAT A PATIENT OVER THEIR OBJECTIONS

Because of some reason or issue in the parent/child relationship, the patient's daughter refused to be the decision maker in her mother's care.

KINGS COUNTY HOSP. v. MR, 2023 NY Slip Op 50647 - NY: Kings Supreme Court 2023:

STEVEN Z. MOSTOFSKY, J.

Kings County Hospital (KCH) filed an application to treat M.R. over her objection under the Family Healthcare Decisions Act, Public Health Law (PHL) § 29-cc. The statute permits the hospital to bring this special proceeding for M.R.'s treatment. (§ 2994-r).

M.R. is a 62-year-old woman who suffers from, among other things, Schizoaffective Disorder, Borderline Personality Disorder, and Stage 5 End Stage Chronic Kidney Disease. She is known to this Court from having previously been the subject of several prior hearings for treatment over objection under both the Family Health Care Decisions Act and 14 NYCRR 527.8, as an involuntary psychiatric patient under Mental Hygiene Law Article 9. On each occasion, the Court authorized treatment.

There was testimony at a prior Court hearing in 2020 that M.R. knew she had 5% kidney function. For each hospitalization since, a doctor testified that without regular dialysis, M.R. could die. She has stated she wants to live despite her refusal to undergo dialysis. She is alive today.

KCH brough this application while M.R. was still being held under Article 9 of the MHL at Kingsboro Psychiatric Center, though physically at Kings County Hospital receiving medical treatment. On May 9, 2023, KCH administered dialysis to M.R. on a "life-saving" basis. The hospital took labs that revealed M.R.'s tenuous health. They indicated that M.R. was at risk of cardiac arrest, renal toxicity, seizure, and other conditions if she did not receive dialysis. KCH then filed an Order to Show cause under 14 NYCRR 527.8 to treat M.R. over her objection on May 12, 2023.

When Kingsboro unexpectedly decided to discharge her from its psychiatric unit while M.R. was still a medical patient at KCH, KCH moved to amend its original application to now proceed under the Family Healthcare Decisions Act, Public Health Law (PHL) § 29-cc. This Court granted the motion.

In this proceeding, KCH seeks to treat M.R. with hemodialysis, to conduct a procedure known as a Permacath to facilitate future dialysis, and to administer psychiatric medication and laboratory tests, over M.R.'s objection.

Here, proceeding under the PHL, the hospital determined that M.R. lacked decision-making capacity. PHL § 2994-b. It identified M.R.'s daughter, C.C., as a suitable surrogate. PHL § 2994-d(1). C.C. testified that her mother never indicated a wish to die and has never been suicidal. C.C. testified that her mom wants to get better, but "doesn't understand that [her condition] is severe and that she will die if she does not get treatment." The Court has the unenviable responsibility to determine the fate of a patient who wants to live but refuses treatment necessary to remain alive.

M.R. did not testify. A representation was made to the Court that her physical condition precluded her from testifying.

C.C. testified on June 15, 2023, that she did not feel comfortable acting as her mother's surrogate. She refused the appointment. Unfortunately, the Court cannot appoint her.

The Court heard testimony from M.R.'s treating doctors. One of those physicians was Dr. Daniel Buchnea, a pulmonologist and critical care physician. Dr. Buchnea did not openly object to M.R. receiving dialysis and other treatments over her objection. But he raised concerns about the balance between its benefits and risks. The hospital empaneled an ethics committee to consider the impact of the treatment on M.R. The committee, probably established for cases like M.R.'s, made no ethical recommendation, and inexplicably punted the decision to M.R.'s daughter, who now refuses to be surrogate.

But on June 12, 2023, Dr. Buchnea treated M.R. and wrote a note in the medical record. The note said "[M.R.] does not wish to die and wants to do dialysis so she can breathe better today." Whether or not she has the capacity to agree to or refuse treatment, she has the innate capacity to signify she doesn't want to die. In fact, her failure to have regular dialysis, as opposed to the status quo where she is only receiving dialysis on an emergent basis once every eight to ten days, affects her brain and cognitive ability. If she continues dialysis, it is possible she could regain cognition and take medication to gain full capacity.

The statute permits the hospital to treat M.R. as requested. Section 2994-g of the PHL governs treatment over objection for patients like M.R. who do not have a surrogate. The statute delineates the steps the hospital must take to provide routine or major medical treatment to a patient without a surrogate. PHL § 2994-g. Based on the testimony and medical records, the Court authorizes the hospital to treat M.R. within the requirements listed under each subsection. PHL § 2994-g(3)(a-b); PHL § 2994-g(4)(i-iii). The Court holds on clear and convincing evidence that the hospital may treat M.R. based on her lack of capacity and ability to balance the treatment's benefits and risks. Additionally, the treatment is in M.R.'s best interests. She wants to live and will die without it.

The hospital may provide dialysis to her three times a week, if necessary, with light sedation. It may also place a new permacath and treat her with the psychotropic medications listed by Dr. Tusher in his affidavit. M.R. may not be restrained unless a cardiologist is present.

It is ORDERED that KCH may treat M.R.over her objection in accordance with the Court's findings. The treatment is in her best interest, the benefits of the treatment outweigh the risks, and is the least restrictive alternative. It is further ORDERED that the hospital shall notify M.R.'s daughter, C.C., before performing any medical procedures not listed above."