Kings 28 Associates v. Raff
| Decision Date | 22 September 1995 |
| Citation | 636 N.Y.S.2d 257,167 Misc.2d 351 |
| Parties | KINGS 28 ASSOCIATES, Petitioner, v. Norman RAFF, Respondent. |
| Court | New York City Court |
Paul A. Crotty, Corporation Counsel of New York City (Alan Ferster, of counsel), for Commissioner of Social Services of City of New York.
Stuart I. Jacobs, Brooklyn (Howard Berglas, of counsel), for petitioner.
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 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 7/10/95 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 8/1/95 and August rent by 8/31/95 and afforded respondent until 8/31/95 to pay the remaining arrears of $5,602.56 through June, 1995. The matter was adjourned to 8/31/95.
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 9/20/95 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 husband's employment with the Immigration Service, the proceeds of which were some $21,000, and that Mrs. Raff was attempting to secure these funds and pay the arrears. Counsel for DSS/PSA requested appointment of a guardian ad litem for June Raff on the grounds that although she is mentally competent, the death of her husband as well as other "subclinical" manifestations, render it difficult for her to take the appropriate actions on her own to enable her to pay the arrears and preserve her long term tenancy. The Court passed the matter to 9/21/95 for appearance of Betty Marshal, Esq.--the guardian ad litem proposed by counsel for DSS/PSA.
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 Housing Corp. v. Jackson, NYLJ, March 20, 1991, p. 22, col. 6, Zuckerman v. Burgess, NYLJ, March 13, 1991, p. 22, col. 3, and Silgo 22nd Street Assoc. v. Hennies, NYLJ, April 24, 1991, p. 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. 1 As petitioner sets forth the premise of these cases (all three rendered by Judge Solomon [Civ.Ct., N.Y. County], Housing Court cannot appoint a guardian ad litem unless and until the Supreme Court has first declared the Housing Court litigant incompetent or incapacitated pursuant to what used to be known as committee or conservatorship proceedings and is now known as a proceeding to appoint a guardian of the person and/or property pursuant to Article 81 of the Mental Hygiene Law. The premise itself is faulty.
The provisions of Sections 1201, 1202 and 1203 of the CPLR are separate and distinct from the provisions of the Mental Hygiene Law. The CPLR mandates that certain individuals shall not appear on their own before the Court. If the categories of persons listed in the CPLR were limited to only those for whom the Supreme Court has appointed a committee or conservator under the old law, or a guardian of their person and/or property under the new law, then the premise would be correct since it is true that Civil and Housing Court do not have jurisdiction to determine issues of competence and capacity.
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 conservatees (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 Housing Corp. v. Jackson, supra, she nonetheless specifically held:
The Commissioner [of DSS] is correct that Article 12 of the CPLR permits 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.)
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