687 N.Y.S.2d 108 | N.Y. App. Div. | 1999
Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about January 21, 1998, which denied defendants’ motion to dismiss the complaint for plaintiffs lack of capacity to sue, and granted plaintiffs cross motion for appointment of a guardian ad litem, unanimously affirmed, without costs.
The motion to dismiss was properly denied on the ground that a person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any other person (Sengstack v Sengstack, 4 NY2d 502). The cross motion for appointment of a guardian ad litem was properly granted since it appears that plaintiff is an unadjudicated incompetent (see, supra, at 509-510; CPLR 1202). Defendants’ argument for dismissal is hardly advanced by cases denying a default judgment against a person whose mental competency is questionable and for whom a guardian ad litem has not been appointed (e.g., Sarfaty v Sarfaty, 83 AD2d 748). Concur— Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.
