466 Associates v. Murray

CourtNew York City Court
Writing for the CourtGEORGE M. HEYMANN; It is interesting to note that while drawing the opposite conclusion in her decisions
Citation151 Misc.2d 472,573 N.Y.S.2d 360
Parties466 ASSOCIATES, Petitioner, v. Thomas MURRAY, Respondent.
Decision Date17 May 1991

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

Page 361

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...

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2 practice notes
  • Kings 28 Associates v. Raff
    • United States
    • New York City Court
    • September 22, 1995
    ...interest is in collecting the rent due from Jackson." (1199 Hous. Corp. v. Jackson, supra.) In fact, in 466 Associates v. Murray, 151 Misc.2d 472, 573 N.Y.S.2d 360 (a decision in which this Court strongly agrees with Judge Heymann's counter-analysis of Judge Solomon's three decisions c......
  • Cabrini Blockfront LLC v. J.N., 58674/17
    • United States
    • New York Civil Court
    • March 27, 2019
    ...to investigate a party's need for a guardian ad litem even when the party is represented by counsel.); 466 Assocs. V. Murray , 151 Misc 2d 472 (Civ. Ct. NY Co. 1991) (Court may appoint a guardian ad litem even over the objection of the affected party's counsel.)Although no more is required ......
2 cases
  • Kings 28 Associates v. Raff
    • United States
    • New York City Court
    • September 22, 1995
    ...interest is in collecting the rent due from Jackson." (1199 Hous. Corp. v. Jackson, supra.) In fact, in 466 Associates v. Murray, 151 Misc.2d 472, 573 N.Y.S.2d 360 (a decision in which this Court strongly agrees with Judge Heymann's counter-analysis of Judge Solomon's three decisions c......
  • Cabrini Blockfront LLC v. J.N., 58674/17
    • United States
    • New York Civil Court
    • March 27, 2019
    ...to investigate a party's need for a guardian ad litem even when the party is represented by counsel.); 466 Assocs. V. Murray , 151 Misc 2d 472 (Civ. Ct. NY Co. 1991) (Court may appoint a guardian ad litem even over the objection of the affected party's counsel.)Although no more is required ......

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