Galante v. Bucciarelli

• Decision Date: 28 January 1986
• Parties: Antoinette GALANTE, Petitioner, v. Joseph BUCCIARELLI, Respondent, and Joseph A. Lichtenthal, Esq. Conservator
• Court: New York Justice Court

Page 966

498 N.Y.S.2d 966

130 Misc.2d 1050

Antoinette GALANTE, Petitioner, v. Joseph BUCCIARELLI, Respondent, and Joseph A. Lichtenthal, Esq. Conservator

Justice Court, Village of Tuckahoe,

Westchester County.

Jan. 28, 1986.

Donald G. Sullivan (Smith, Ranscht, Pollock, Manos & Connors, White Plains,) for petitioner.

Joseph A. Lichtenthal, White Plains, for respondent.

LOTHAR E. NACHMAN, Village Justice.

This is a motion to dismiss a petition by the Petitioner/Landlord to remove the Respondent/Tenant from the premises, Apt. 5, 82 Wallace Street, Tuckahoe, N.Y.

FACTS

The Respondent is over 80 years of age and has resided for many years on the premises, from which Petitioner wants to evict him. Respondent's wife resided with him but has been placed in a home under the supervision of the Department of Social Services of the County of Westchester. On at least one prior occasion, Petitioner sought to evict the Respondent in this Court. At such time, Respondent was observed to have no apparent understanding of the proceedings. Ultimately, following the order of this Court in that prior proceeding, the Westchester County Department of Social Services intervened, and it now provides extensive home care and other services to the Respondent, and has caused a Conservator to be appointed for him.

A new action has now been commenced, naming both the Respondent and the Conservator as parties to the action. Petitioner claims that the condition of the Respondent is such that he is a danger to himself and has caused a disagreeable nuisance to other tenants in the building, that he is unable to care for himself and that he has created a health hazard, endangering the health and welfare of the other tenants. Petitioner avers that Respondent has been requested to seek residence in a facility that is able to care for him, but that the Respondent has refused such offers.

The Conservator denies Petitioner's allegations, and, inter alia, alleges that the instant action is intended to remove the Respondent for the purpose of obtaining an increase in rent.

The issues of fact presented have not been tried.

The Conservator's instant motion seeks dismissal of the action on the grounds that this Court has no jurisdiction of the proceeding, in that Petitioner has failed to obtain permission from the Supreme Court to sue an incompetent after a conservator has been appointed.

OPINION

The instant proceeding demonstrates an ever increasing problem of the elderly, who, although unable to continue to take care of themselves in the homes where they have lived for many years, would prefer to live out their days at home, even alone, rather than be forced to abandon their accustomed surroundings and surrender themselves to institutional care. It is uncontroverted that the Respondent/Tenant is receiving home care assistance from the Department of Social Services and can therefore be presumed to be under some supervision. Whether such supervision is sufficient to negate the Petitioner/Landlord's allegations must necessarily await testimony at a trial of the issues of fact.

Respondent/Tenant has been judicially declared incompetent in a proceeding in the Supreme Court, and a conservator has been duly appointed. The sole question to be decided by this Court at this stage of the proceedings is, whether the action can be maintained without Petitioner being granted leave to sue the incompetent and his conservator. While there is no statutory authority to be found either in the CPLR or in the Mental Hygiene Law that leave of the court must be obtained to sue an incompetent person, the courts have generally held that such leave is required.

"Incompetent persons become the wards of the court, upon which a duty devolves of protection both as to their persons and property. This duty is not limited to cases only in which a committee has been...