Butler v. Ross

Filing 136

MEMORANDUM OPINION AND ORDER......Rosss October 4, 2017 motion pursuant to N.Y. Mental Hyg. Law § 81 is denied. The Clerk of Court shall enter judgment for plaintiff Butler and close the case. (Signed by Judge Denise L. Cote on 10/27/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SUSAN BUTLER,
:
Plaintiff,
:
:
-v:
:
NORMAN ROSS,
:
:
Defendant.
:
:
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16cv1282 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
An October 3, 2017 Opinion (“October 3 Opinion”) held that
the defendant Norman Ross owes $350,200 plus prejudgment
interest to plaintiff Susan Butler.

Butler v. Ross, 16cv1282

(DLC), 2017 WL 4417700 (S.D.N.Y. Oct. 3, 2017).

On October 4,

the defendant filed a letter motion requesting a hearing
pursuant to N.Y. Mental Hyg. Law § 81.

Briefing on the motion

was fully submitted on October 12.
The relevant section of the New York Mental Hygiene Law
reads in pertinent part:
(a) The court may appoint a guardian for a person if the
court determines:
1. that the appointment is necessary to provide for
the personal needs of that person, including food,
clothing, shelter, health care, or safety and/or to
manage the property and financial affairs of that
person; and
2. that the person agrees to the appointment, or that
the person is incapacitated as defined in subdivision
(b) of this section.

N.Y. Mental Hyg. Law § 81.02 (McKinney 2017).

A court “may

appoint a guardian for a person or a person's property upon
determining, by clear and convincing evidence, that the
requirements of [Section] 81 have been met.”

Loftman v. Mae R,

999 N.Y.S.2d 166, 167 (N.Y. App. Div. 2014).

The purpose of the

law is
to promote the public welfare by establishing a
guardianship system which is appropriate to satisfy either
personal or property management needs of an incapacitated
person in a manner tailored to the individual needs of that
person, which takes in account the personal wishes,
preferences and desires of the person, and which affords
the person the greatest amount of independence and selfdetermination and participation in all the decisions
affecting such person's life.
N.Y. Mental Hyg. Law § 81.01 (McKinney 2017).

“A guardian

should be appointed only as a last resort, where no available
resources or other alternative will adequately protect the
alleged incapacitated person.”
73, 74 (N.Y. App. Div. 2015).

In re Harold W. S., 22 N.Y.S.3d
New York law does not provide

that a court should decline to enter judgment or vacate a
judgment if a guardian is appointed.
Ross’s submissions do not discuss the appointment of a
guardian.

Ross’s request for a hearing does not appear to refer

to a proceeding contemplated by the statute, that is, a
proceeding to determine incompetence and the necessity of a

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guardian.1

For instance, Ross makes no effort to follow the

clear steps needed to initiate a Section 81 proceeding in his
submissions.

It is likewise unclear if Ross is alleging

incapacity, or if he is agreeing to the appointment of a
guardian, or if he understands the purpose of the Mental Hygiene
Law.
Ross argues in broad strokes that the Court should look to
Section 81 “by analogy” and refuse to enter a judgment against
Ross.

He argues that the law looks unfavorably upon individuals

becoming public charges.

Ross argues that he will become a

public charge if he is directed to pay the amount owed to
Butler.

Ross cites a number of statutes and cases from

different contexts -- like divorce and immigration -- to support
his claim that courts should not enforce judgments against
individuals that are unable to pay.

This argument is

unavailing.
Inability to pay can be a defense to a contempt charge
after a judgment has been entered.

See, e.g., Huber v. Marine

Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995) (“[A] party's
complete inability, due to poverty or insolvency, to comply with
an order to pay court-imposed monetary sanctions is a defense to
a charge of civil contempt.”)

But it is not an affirmative

The title of the statute is “Proceedings for Appointment of a
Guardian for Personal Needs or Property Management.”
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defense that Ross can rely on to avoid judgment.

Moreover, a

simple assertion of the inability to pay is insufficient in New
York to avoid payment of a judgment.

A state court hearing will

often be held, after judgment has been entered and the defendant
has refused to pay, “only when demonstrated factual issues have
been shown to exist.”

Ovsanikow v. Ovsanikow, 637 N.Y.S.2d 805,

806 (N.Y. App. Div. 1996) (emphasis supplied).
At bottom, this motion is an effort to relitigate issues
already decided adversely to Ross.2

Section 81 of the New York

Mental Hygiene Law provides no avenue to Ross to present such
arguments and he has not shown any other basis to revisit the
issues resolved in the October 3 Opinion.

For example, Ross complains that he was not allowed to offer
live testimony at trial. As stated in the October 3 Opinion,
Ross was aware of the Court’s trial procedures which include
taking direct testimony by affidavit, and did not raise any
issue with these procedures prior to trial. In his pretrial
documents Ross submitted an affidavit, which was received as his
direct testimony. The defendant chose not to cross-examine
Ross. Ross also attempts to reargue the issue of laches, which
was addressed in the October 3 Opinion.
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CONCLUSION
Ross’s October 4, 2017 motion pursuant to N.Y. Mental Hyg.
Law § 81 is denied.

The Clerk of Court shall enter judgment for

plaintiff Butler and close the case.
Dated:

New York, New York
October 27, 2017
__________________________________
DENISE COTE
United States District Judge

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