167 Misc. 2d 351 | N.Y. City Civ. Ct. | 1995
OPINION OF THE COURT
In accordance with the decision and order of July 10, 1995, the court indicated that it had two motions before it: (1) pro se motion brought by June Raff, wife of respondent Norman Raff, seeking an extension of time to pay arrears pursuant to stipulations between the parties, due to her husband being totally disabled and Protective Services for Adults (PSA) being involved in her case; (2) order to show cause brought by the Corporation Counsel on behalf of the Department of Social Services/Protective Services for Adults (DSS/PSA) seeking, inter alia, appointment of a guardian ad litem pursuant to CPLR 1201 to protect the rights and interests of Norman Raff, alleging that the health of both Norman Raff and June Raff is such that they cannot adequately defend their rights in this proceeding.
In its July 10, 1995 decision the court, inter alia, held in abeyance the guardian ad litem motion and, based upon the appearance of counsel for DSS/PSA and Mrs. Raff and a discussion of the Raffs’ application for emergency assistance funds to pay arrears, the court directed respondent to pay July rent by August 1, 1995 and August rent by August 31, 1995 and afforded respondent until August 31, 1995 to pay the remaining arrears of $5,602.56 through June 1995. The matter was adjourned to August 31, 1995.
Unfortunately, on August 31 the court was informed by Corporation Counsel that Norman Raff had passed away and that Mrs. Raff was not present as she was attending her husband’s funeral. As a result, the matter was adjourned to September 20, 1995.
On September 20, 1995, Mrs. Raff appeared along with an attorney for DSS. The court was informed that Mrs. Raff was the beneficiary of a life insurance policy as a result of her
Having observed and spoken to June Raff on a number of occasions and having ascertained that Ms. Marshal is capable and has consented to serve as guardian ad litem for June Raff, the court agrees with the position of counsel for DSS/PSA. Therefore, pursuant to CPLR 1201 and 1202, it is ordered, that Betty Marshal, Esq., who is a competent and responsible person, aware of the nature of the within proceeding, be and is hereby appointed guardian ad litem of June Raff, to serve without bond, and to appear for and protect her rights and interests in this action.
The court notes petitioner’s opposition to said appointment. In short, this court has considerable experience in this area and sharply disagrees with petitioner’s reliance upon 1199 Hous. Corp. v Jackson (NYLJ, Mar. 20, 1991, at 22, col 6), Zuckerman v Burgess (NYLJ, Mar. 13, 1991, at 22, col 3), and Silgo 22nd St. Assoc. v Hennies (NYLJ, Apr. 24, 1991, at 22, col 6), for the proposition that this court lacks jurisdiction to appoint a guardian ad litem because it has no jurisdiction to make capacity/competency decisions.
The provisions of CPLR 1201, 1202 and 1203 are separate and distinct from the provisions of the Mental Hygiene Law.
However, the CPLR categories are not so limited. In essence, CPLR 1201 provides three categories of persons who shall appear by a guardian ad litem: (1) certain infants, (2) certain adjudicated incompetents or consérvateos (now, certain persons who have had guardians of their person and/or property appointed), (3) or an individual who "is an adult incapable of adequately prosecuting or defending his [her] rights. ” (Emphasis added.) It is this third category which is operative herein and in the dozens of reported cases in which guardians ad litem have been appointed in summary eviction proceedings. It is this category which does not require Supreme Court adjudication of competency/capacity and which properly gives Civil and Housing Court Judges discretion to appoint guardians ad litem, solely in the specific proceeding before the court, to appear for litigants who seem to the court to be unable to understand the nature of the proceedings and adequately protect and assert their rights and interests in their tenancy.
To phrase it another way, the reason why a Housing Court Judge can appoint a guardian ad litem under this third category is because it does not set a standard of incompetency, which must be decided by the Supreme Court, but rather sets forth a lesser standard of an individual who does not appear able to adequately defend or prosecute his/her rights in the individual proceeding before the Housing Court. Moreover, while Judge Solomon declined to appoint a guardian ad litem in 1199 Hous. Corp. v Jackson (supra), she nonetheless specifically held: "The Commissioner [of DSS] is correct that Article 12 of the CPLR permits the appointment of a guardian ad litem to appear for 'an adult incapable of adequately prosecuting or defending his rights’ * * * and that this court has the power to make such an appointment. ” (Emphasis added.)
A careful reading of 1199 Hous. Corp. v Jackson (supra) will reveal that the DSS/PSA psychiatric evaluations of the tenant therein indicated that the tenant was psychotic and included a referral to the DSS Office of Legal Affairs for the initiation of a conservator/committee proceeding in Supreme Court concern
It should also be noted that the petitioner in Jackson (supra) did not object to the appointment of a guardian ad litem "as its only interest is in collecting the rent due from Jackson.” (1199 Hous. Corp. v Jackson, supra.) In fact, in 466 Assocs. v Murray (151 Misc 2d 472 [a decision in which this court strongly agrees with Judge Heymann’s counteranalysis of Judge Solomon’s three decisions cited above]), the motion to appoint a guardian ad litem was brought by the petitioner itself. In 466 Assocs. the court concluded that it had the "inherent power” and the jurisdiction under CPLR 1201 and 1202 "to appoint a guardian ad litem for the limited purpose of appearing for a party during the particular litigation at hand. (See, Seigel, NY Prac § 196 [2d ed].)” (Supra, at 475.)
Further, unlike the situation in many of the reported decisions involving appointment of a guardian ad litem in eviction proceedings, June Raff has appeared in court on a number of occasions. Both myself and my court attorneys have had opportunities to observe her demeanor and to speak with her. In addition, her husband recently passed away. Thus, the court’s bases for appointing a guardian ad litem for Mrs. Raff are not limited to the moving papers of the Commissioner of DSS or
On another issue, petitioner correctly argues against this court’s vacatur of the stipulations of settlement entered into between Mrs. Raff and petitioner. However, Mrs. Raff’s pro se motion does not seek vacatur, but rather an extension of time to pay arrears pursuant to the stipulations. To the extent that the motion of the Commissioner of DSS to appoint a guardian ad litem is also read to request vacatur of said stipulations, or of the judgment or warrant herein, it is denied. Although the court has appointed a guardian ad litem for Mrs. Raff it has not found (even if it could), and does not believe, that she is incompetent or even incapable of understanding the nature and consequences of the stipulations which she signed and the court carefully allocuted.
The court is also cognizant that this matter has been pending for some time and that respondent cannot live rent free. However, the court feels that the circumstances after Mr. Raff’s passing are such that with the assistance of Ms. Marshal, as guardian ad litem, Mrs. Raff may very well be enabled to become focused and understand the gravity of her situation and take the necessary steps to avoid the consequences of her eviction, while in a short time paying petitioner all rent due to date. Therefore, it is further ordered, that execution of the warrant herein is stayed and June Raff is afforded an extension of time until October 31, 1995 to work with her guardian ad litem in order to secure and pay the arrears of $5,938.71 due through September 30, 1995. Mrs. Raff is also to pay October rent by October 31, 1995. It is further ordered, that the appointment of Betty Marshal, Esq. as guardian ad litem for June Raff pertains only to assistance in resolving this nonpayment proceeding and maintaining Mrs. Raff in the subject premises, if possible, and is made for the purposes including, but not limited to, the guardian ad litem acting to the best of her ability to assist Mrs. Raff in obtaining the arrears due by October 31, 1995, either by securing the life insurance proceeds to which she may be entitled or by obtaining
See, Finkelstein, Issues, Considerations and Suggested Responses in Housing Matters Involving At-Risk Litigants, unpublished manuscript, July 1989, as cited in 1199 Hous. Corp. v Jackson, supra.