In re Mary H.

• Decision Date: 11 March 2015
• Docket Number: 2014-05693
• Citation: 126 A.D.3d 794,5 N.Y.S.3d 270,2015 N.Y. Slip Op. 01945
• Parties: In the Matter of MARY H. (Anonymous). Marsella Sanders–Spencer, petitioner-appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 794

5 N.Y.S.3d 270

2015 N.Y. Slip Op. 01945

In the Matter of MARY H. (Anonymous). Marsella Sanders–Spencer, petitioner-appellant.

2014-05693

Supreme Court, Appellate Division, Second Department, New York.

March 11, 2015.

Bruce L. Steinowitz, White Plains, N.Y., for petitioner-appellant.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.

Opinion

In a proceeding pursuant to CPLR article 12 for the appointment of a guardian ad litem for Mary H., the petitioner appeals from an order of the Supreme Court, Queens County (Strauss, J.), entered February 4, 2014, which, in effect, dismissed the petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a hearing to be held with all convenient speed, to determine whether a guardian ad litem should be appointed for Mary H.

The petitioner, Marsella Sanders–Spencer (hereinafter the appellant), is the granddaughter of Mary H., who has been diagnosed with dementia. In October 2013, Mary H. allegedly was injured due to the negligence of a home health aide employed by Rockaway Home Attendant Services, Inc. (hereinafter Rockaway). In December 2013, the appellant petitioned to be appointed guardian ad litem for Mary H. pursuant to CPLR 1201 and 1202 for the purpose of commencing an action against Rockaway. The Supreme Court, in effect, dismissed the petition on the ground, inter alia, that service of process upon Mary H. was insufficient.

Contrary to the Supreme Court's determination, the appellant provided proper notice of the petition, as it was personally served upon Mary H. and “upon the person with whom [s]he resides” (CPLR 1202[b] ; see Bocina v. Schlau, 125 Misc.2d 682, 683, 480 N.Y.S.2d 93 [Sup.Ct., Suffolk County] ; Matter of Weingarten v. State of New York, 94 Misc.2d 788, 790–791, 405 N.Y.S.2d 605 [Ct.Cl] ).

“It is often said that courts should not ‘shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared as such’ as ‘[t]here is a duty on the courts to protect such litigants' ” (Shad v. Shad, 167 A.D.2d 532, 533, 562 N.Y.S.2d 202, quoting Sengstack v. Sengstack, 4 N.Y.2d 502, 509, 176 N.Y.S.2d 337, 151 N.E.2d 887 ; see Tudorov v. Collazo, 215 A.D.2d 750, 750, 627 N.Y.S.2d 419 ; CPLR 1201, 1202 ). “ ‘Accordingly, where there is a question of fact as to whether a guardian ad litem should be appointed, a hearing must be conducted’ ” (Resmae Mtge. Corp. v. Jenkins, 115 A.D.3d 926, 927, 983 N.Y.S.2d 64, quoting Shad v. Shad, 167 A.D.2d at 533, 562 N.Y.S.2d 202 ). Here, in light of...