466 Associates v. Murray

• Decision Date: 17 May 1991
• Citation: 151 Misc.2d 472,573 N.Y.S.2d 360
• Parties: 466 ASSOCIATES, Petitioner, v. Thomas MURRAY, Respondent.
• Court: New York City Court

Page 360

573 N.Y.S.2d 360

151 Misc.2d 472

466 ASSOCIATES, Petitioner, v. Thomas MURRAY, Respondent.

Civil Court of the City of New York,

New York County,

Part 18A.

May 17, 1991.

Sam Goldfarb, Morganthau, Greenes & Goldfarb, New York City, for petitioner.

Laurie A. Weber, of counsel, Douglass J. Seidman, Legal Aid Society, New York City, for respondent.

GEORGE M. HEYMANN, Judge.

The petitioner/landlord, 466 Associates, has moved this court for the appointment of a guardian ad litem for the respondent/tenant Thomas Murray, on the grounds that he is not capable of adequately defending himself in this proceeding.

This proceeding involves a dispute between the parties over the possession of Apartment # 2 Rear located at 468 Avenue of the Americas, New York, N.Y.

The petitioner initially commenced a non-payment proceeding [L & T Index No. 60545/90] in February, 1990. Upon respondent's default an inquest was scheduled for April 26, 1990 before Hon. Joan Lobis. On the scheduled inquest date, Judge Lobis advised petitioner's counsel that "she had just received a bizarre correspondence from Mr. Murray which convinced her that he was not competent to deal with the dispossess proceeding." (See Affidavit of Arthur Krystofiak in support of Petitioner's motion, p. 6, para. 12). On May 24, 1990 the court contacted Protective Services For Adults (PSA). On July 24, 1990 the court entered a final judgment after inquest--warrant stayed 10 days after service of a copy of the judgment upon respondent and upon PSA and filing proof of service with the clerk of the court.

In August, 1990 Petitioner commenced a holdover proceeding [L & T Index No. 93934/90]. This matter was dismissed on August 23, 1990 on the non-appearance of either side.

In September, 1990 another holdover proceeding was brought by the petitioner [L & T Index No. 104808/90], which was thereafter discontinued without prejudice when the respondent, appearing pro se, agreed to become a client of PSA.

A third holdover proceeding [L & T Index No. 54735/91] was instituted by the petitioner in January, 1991, which was marked off calendar in March, 1991. The respondent did not appear in this proceeding.

Each of these holdover proceedings was based on the grounds that the respondent's actions in his apartment created a nuisance.

In February, 1991, Mr. Murray was admitted to Bellevue. Petitioner claims he was advised by PSA and representatives at Bellevue that respondent would be receiving permanent care at Bellevue or someplace else. Based on this information, petitioner submits that he believed that respondent would not be returning to the apartment and changed the locks.

At the request of PSA the Legal Aid Society became engaged as counsel for the Respondent.

In April, 1991, counsel for the respondent brought an order to show cause under L & T Index No. 60545/90 (the nonpayment proceeding) to regain possession of the apartment. The petitioner argues that the non-payment proceeding is no longer pending and, thus, the court lacks jurisdiction to determine the motion. ¹ As a result, respondent brought a new order to show cause [L & T Index No. 15530/91 under the caption Thomas Murray, Petitioner, against 466 Associates, Respondent], seeking the same relief and moved to consolidate the matters.

On April 24, 1991 the petitioner/landlord cross-moved on the original index number for the appointment of a guardian ad litem.

In support of said motion, petitioner has annexed four affidavits, including one from a Board Certified Psychiatrist (who reviewed certain material pertaining to the respondent but did not base his affidavit on personal contact with the respondent) and one from a tenant who lives in the apartment directly above the respondent. These affidavits allege, inter alia, that the respondent has a severe mental disorder (paranoid schizophrenia chronic, type 296.3); that he is not capable of living by himself in an apartment; that he keeps his apartment in a state of chaos and filth, which presented a health hazard to both himself and other tenants; that he is capable of setting a fire in his apartment (a previous fire in his apartment occurred on January 1, 1989) and that his conduct was affecting the other tenants in the building.

Counsel for the petitioner contends that a guardian ad litem is necessary to assist Mr. Murray in the defense and prosecution of these cases and that without such an appointment any judgment or settlement would be voidable.

In opposition to the instant motion, respondent's attorney avers that although he believes petitioner's attorney is raising the issue in good faith, his client is capable of returning to his apartment based on his present treatment and has expressed a desire to do so. He feels there is no need for a guardian ad litem since the respondent is cooperating with him. ²

The two issues that must now be addressed by this court are: I) whether the Housing Court has the jurisdiction to appoint a guardian ad litem and II) whether a guardian ad litem should be appointed.

I.

Not only does there appear to be no hard and fast rule as to the Housing Court's jurisdiction to appoint a guardian ad litem, the subject itself has generated a great deal of controversy. Ironically, on the very day that petitioner moved this court for such relief (April 24, 1991) a decision by Judge Solomon, Civil Court, New York County, appeared in the New York Law Journal wherein the court "... decline[d] to appoint a guardian ad litem because this Court has no jurisdiction to make capacity/competency decisions." Silgo 22nd Street Assoc. v. Hennies, NYLJ, 4/24/91, p. 22, col. 6, citing and relying on 1199 Housing Corp. v. Jackson, NYLJ, 3/20/91, p. 22, col. 6 and Zuckerman v. Burgess, NYLJ 3/13/91, p. 22, col. 3 also decided by Judge Solomon.

While the law is clear that issues of competency which may result in the appointment of a conservator or committee are within the sole province of the Supreme Court, it is the opinion of this court that the Housing Court does have the jurisdiction to appoint a guardian ad litem for the limited purpose of appearing for a party during the particular litigation at hand. See Siegel, New York Practice, Second Edition, Sec. 196.

CPLR Sec. 1201 provides for the appointment of a guardian ad litem for "an adult incapable of adequately prosecuting or defending his rights."

CPLR Sec. 1202 provides in pertinent part:

"(a) By whom motion made. The Court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of

* * * * * *

(3) any other party to the action if a motion has not been made under paragraph one or two within ten days after completion of service."

As noted in Siegel, supra at Sec. 194, at 285-86:

"If the person has not been adjudicated an incompetent or conservatee, but appears to be 'incapable of adequately prosecuting or defending his rights', a guardian ad litem may be appointed. It is not a good idea for one party to proceed against another if he knows the other to be incapable of looking after his rights, despite the absence of a formal adjudication to that effect. * * * Without such a guardian, a judgment against D may be in jeopardy even if D purported to appear by an attorney of his own choosing, apparently on the theory that D lacked even the competence to choose."

It is interesting to note that while drawing the opposite conclusion in her decisions, Judge Solomon stated the following in 1199 Housing Corp. v. Jackson, supra at 23, col. 1:

"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 appointment." (Emphasis added.)

In 1199 Housing Corp., supra, the court was concerned about whether a guardian ad litem could do that...