Estate of Brook v Ruotolo 2026 NY Slip Op 32036(U) May 11, 2026
Supreme Court, New York County Docket Number: Index No. 805045/2024
Judge: John J. Kelley reads like a movie. Well off mother and father engage in proper estate planning, husband and son become successor-attorneys-in-fact with healthcare proxies only to have an uncle come in and take over.

In this action to recover damages for violation of the New York Constitution, wrongful
death, a survival claim for the decedent’s conscious pain and suffering, breach of fiduciary duty, medical and legal malpractice, fraudulent billing, unjust enrichment, violation of Judiciary Law § 487, fraud on the court, and negligent infliction of emotional distress, the defendant Allen Logerquist, M.D., moves pursuant to CPLR 3211(a)(5), CPLR 214-a, and EPTL 5-4.1 to dismiss the complaint insofar as asserted against him as time-barred. The plaintiffs oppose the motion.

The motion is denied.
The complaint alleged the following facts. The crux of this action involves the care and
treatment of the decedent, Judith Brook, who was a researcher and professor of psychiatry. On June 15, 2006, as a part of her estate planning, the decedent appointed her husband as her attorney-in-fact and healthcare proxy, and further appointed her two sons, including the plaintiff Adam Brook, M.D. (Brook), as successor attorneys-in-fact and healthcare proxies in the event that her husband could not serve in those capacities. Thereafter, the decedent’s other son, that is, the plaintiff’s brother, died in 2015, while the decedent’s husband died in 2018, leaving Brook as the sole attorney-in-fact and healthcare proxy. The decedent’s will left the majority of her $8 million dollar estate to Brook and his two nieces. The decedent also had a brother, the defendant Howard Muser, but her will left only small bequests to Muser and his children, and
nothing for Muser’s wife.
In September 2018, the decedent sustained a spinal fracture and underwent a balloon
kyphoplasty procedure to alleviate the pain. Thereafter, she suffered a second spinal fracture, and the medication prescribed to treat her resultant pain left her in a coma for three days. Once awake, the decedent was discharged to the Riverside Premier Rehabilitation and Healing Center (hereinafter Riverside). The decedent remained at Riverside, due to other medical complications, until her discharge in May 2019, at which time Riverside recommended that she have supervision while at home for 24 hours each day, 7 days per week. On May 9, 2019, Muser filed a petition in the Supreme Court, New York County (the petition), to have the decedent declared incapacitated, void Brook’s power of attorney and healthcare proxy, and have Muser and his wife appointed as guardian and successor guardian, respectively. Muser’s son-in-law, the defendant Ian Shainbrown, and Shainbrown’s colleague and friend, the defendant Karl Huth—through their respective law firms, the defendants The Shainbrown Firm, LLC, and Huth, Reynolds, LLP—prepared and filed the petition. The petition alleged that Brook
was misappropriating his mother’s wealth and withholding medical treatment and support from her, that, while the decedent was incapacitated, Brook had forced her to execute documents granting him total control of her personal and property management, and that Brook had refused Muser’s repeated requests over a period of five months to discuss the nature of those documents. It further alleged that the decedent was “distraught” over Brook’s conduct, and wanted Muser to intervene. The petition also sought the appointment of a temporary guardian while the guardianship matter was finally resolved.
On May 16, 2019, Justice Kelly O’Neill-Levy heard the petition, and signed an order to
show cause appointing Mental Hygiene Legal Services (MHLS) to represent the decedent, and Margaret Crowley, Esq., as a court evaluator. The defendants Diane Rosenthal, Esq., and Felice Wechsler, Esq., of MHLS (together with MHLS, the MHLS Defendants), served as the decedent’s court-appointed attorneys. On May 28, 2019, Justice O’Neill-Levy also appointed the defendant Joseph Ruotolo, Esq., to serve as the decedent’s temporary guardian, and expanded Ruotolo’s powers on May 30, 2019. On May 29, 2019, Ruotolo, in his first act as temporary guardian, canceled the decedent’s impending discharge from Riverside. The decedent was eventually discharged to her home at some time in early-to-mid June 2019, and Ruotolo appointed the defendant Allegiant Home Care, LLP (Allegiant) to provide homecare services to the decedent, including home health aides and nurses.”

“Thereafter, Justice O’Neill-Levy presided over hearings on the petition on July 1, 2019
and September 6, 2019, and conducted a trial on October 18, 2019. On January 3, 2020,
Justice O’Neill-Levy terminated Brook’s power of attorney and healthcare proxy, and expanded Ruotolo’s guardianship powers over the decedent and her property. Brook alleged that, on January 6, 2020, no nurse came to administer his mother’s medication to her, so he administered it himself. On January 11, 2020, Ruotolo filed a police report against Brook alleging that Brook was interfering with his mother’s medication. On January 12, 2020, the decedent became ill from a purported mishandling of her medication, and was taken to New York Presbyterian Weill-Cornell Hospital (NYPH) by ambulance. On January 17, 2020, the decedent was discharged from NYPH and, at the direction of Ruotolo, was sent to the defendant Mary Manning Walsh Nursing Home (MMW) over the decedent’s objections. MMW contracted with defendant Monitor/me, LLC, to provide telemedicine services to MMW patients.

On January 21, 2020, the decedent experienced a seizure, became unresponsive, and lost consciousness, for which she was administered cardiopulmonary resuscitation at MMW, and then taken by ambulance to NYPH’s emergency room. On February 5, 2020, at Ruotolo’s direction, the decedent returned to MMW upon her discharge from NYPH, although she had difficulty breathing and was ultimately returned to NYPH and readmitted that same day.
On January 31, 2020, MHLS requested to vacate its appointment as counsel for the
decedent, a request that Justice O’Neill-Levy granted on February 6, 2020, upon which she named the defendant Kenneth Barocas, Esq., as successor counsel. On February 14, 2020, Barocas, allegedly without having ever spoken to the decedent, supported Ruotolo’s requests to expand his guardianship powers to allow the decedent to be involuntarily placed in hospice care and to prevent NYPH physicians from speaking with Brook regarding the decedent’s medical condition or care. Justice O’Neill-Levy granted Barocas’s request. On February 15, 2020, Brook found the decedent unresponsive at NYPH, and the medical staff there discovered that the decedent had experienced another gastrointestinal bleed, which they treated. The decedent regained consciousness the next day, but fell back into a coma the day after that. The decedent never recovered from her coma, and died while still at NYPH on March 15, 2020. On February 17, 2021, letters testamentary were issued to Brook, and he was appointed co-executor of the decedent’s estate, along with Nicole Hazard Brook, Esq.”

THE DISCUSSION ON THE FEDERAL LITIGATION AND THE INTERPLAY OF CPLR 205 CPLR 214-a, EPTL 5-4.1 AND THE COVID TOLL IS TOO LONG TO BE REPODUCED HERE.