Matter of Linden-Rath

• Decision Date: 16 April 2001
• Citation: 188 Misc.2d 537,729 N.Y.S.2d 265
• Parties: In the Matter of FLORENCE LINDEN-RATH, an Incapacitated Person.
• Court: New York Supreme Court

188 Misc.2d 537

729 N.Y.S.2d 265

In the Matter of FLORENCE LINDEN-RATH, an Incapacitated Person.

April 16, 2001.

Rita Lambek, guardian pro se.

Jerry H. Goldfeder, New York City, for landlord.

OPINION OF THE COURT

DIANE A. LEBEDEFF, J.

This matter involves a remarkably vigorous and charming woman, now approximately 103 years of age and the widow of a German count. For the past 50 years, she has lived in the same rent-regulated apartment, which has two bedrooms and a maid's room. The landlord has served a notice of termination, premised upon conditions in the apartment which are claimed to constitute a nuisance. However, the tenant is subject to a guardianship and the guardian now moves for a permanent stay of the notice of termination and the landlord desires to commence a summary holdover proceeding, which poses the legal issue which this decision must address.

As a matter of background, in 1999, the same landlord brought the underlying proceeding for appointment of a guardian pursuant to article 81 of the Mental Hygiene Law. The guardianship action was commenced upon the basis that the condition of the tenant's apartment indicated incapacity. The landlord did not then desire an eviction. The court evaluator's description of the clutter was grimly telling, portraying a massive collection of objects from a long and satisfying life jammed into the large apartment. Because the tenant recognized that she experienced difficulties in dealing with her affairs, a guardian of her person and property was appointed with her consent. Shortly after the guardian was appointed in September of 1999, the guardian had the apartment deep cleaned with the ward's consent and steadily discouraged the ward from bringing home bottles, cans and other objects collected in the street. The deep cleaning involved a significant economic commitment of many thousand dollars.

In March of 2000, the landlord moved for unspecified relief, complaining that the collecting activity continued and some excess objects remained in the apartment. On May 12, 2000, the court inspected the apartment in the presence of the ward, the guardian, the landlord, and the landlord's counsel. Conditions were remarkably improved. Quite persuasively, the guardian explained that, after the deep cleaning corrected hazardous conditions, a further gradual reduction of excess possessions allowed the ward to come to see the improved conditions as "normal," to appreciate the improvement, and to be proud of her apartment. The landlord's motion was marked off without prejudice to restoration (order of Aug. 8, 2000). The guardian then began to address apartment repairs, including painting. Other repairs, including plumbing repairs, were requested from the landlord.

In August of 2000, the landlord issued the subject notice of termination based upon allegations that the ward was creating a nuisance by (1) bringing dead flowers, cans and/or bottles into the apartment, (2) keeping newspapers and printed material in the apartment, (3) having old and rotten food in the apartment, and (4) maintaining the apartment in an unhealthy and hazardous condition, with an infestation of vermin. Prior to the termination date, the guardian sought a stay of the notice of termination from this Court and also sought a permanent stay of a summary proceeding seeking eviction.

Legal precedent clearly supports a motion by a guardian seeking a stay of litigation, upon the basis that approval of the appointing court must be secured to sue a guardian in his or her representative capacity. Once a guardian is appointed for an incapacitated person, litigation against a guardian as representative of the incapacitated person should not proceed without permission of the court which appointed the guardian (Carter v Beckwith, 128 NY 312, 316 [1891]; Smith v Keteltas, 27 App Div 279 [1st Dept 1898]; Shatsky v Sea Gate Assn., 11 Misc 2d 905, 906 [Sup Ct, Kings County 1958]; Sinley v Estco, Inc., 25 Misc 2d 172, 175 [Sup Ct, Nassau County 1960]; Galante v Bucciarelli, 130 Misc 2d 1050 [Just Ct, Westchester County 1986, Nachman, J.]). It is accepted procedure that the claimant may move for such permission or that the fiduciary may seek a stay (see, Copeland v Salomon, 56 NY2d 222, 229 [1982], quoting Pruyn v Black, 105 App Div 302, 304 [3d Dept 1905], affd sub nom. Pruyn v McCreary, 182 NY 568 [1905] [in relation to the same principle as applicable to a court-appointed receiver, "(t)he court, on motion, may set aside or stay the proceeding commenced without its sanction"]).

This obligation to obtain authority from the appointing court to sue a guardian cannot be waived by the guardian or by action of another court, nor is the appearance of a committee or guardian in another action tantamount to permission to sue (Dean v Halliburton, 241 NY 354 [1925]).^[1] Even the appointment of a guardian ad litem by the other court does not excuse this requirement for, as stated in Tudorov v Collazo (215 AD2d 750, 750-751 [2d Dept 1995]):

"It is well settled that a guardian ad litem may be appointed by a court at any stage of an action in which an adult is incapable of adequately prosecuting or defending his or her rights * * * A guardian ad litem may be appointed to represent such a party even when no formal adjudication of incompetence has been made * * * However, a guardian ad litem is not authorized to apply to the court for approval of a proposed settlement of a party's claim (see, CPLR 1207) or to receive the proceeds of a settlement pursuant to CPLR 1206 * * * Instead, the right to apply for court approval of a proposed settlement and to receive the settlement proceeds is granted to a guardian appointed in accordance with Mental Hygiene Law article 81 (see, CPLR 1206, 1207)." (Citations omitted.)^[2]

These principles rest upon the fundamental proposition that, while title to property of an incapacitated person remains with the incapacitated person, the property of a ward is subject to the control of the court:

"If the action had not been commenced until after the * * * appointment of the committee, the service of the summons upon the defendant or his committee without leave of the court might have been set aside by the court * * * or the prosecution of the action enjoined * * * and the plaintiff would also be subject to punishment for contempt, because, although the title to the property remains in the lunatic, the court, by the committee, takes unto itself the custody, care and management of the property for the purpose of preserving it from waste or destruction, and providing for the payment of his debts and the maintenance of himself and family, and the education of his children, and it will brook no interference with the property or with the committee, who is its officer or bailiff." (Grant v Humbert, 114 App Div 462, 464 [1st Dept 1906].)

This same precept is recognized in Mental Hygiene Law § 81.29 (c), which states:

"The title to all property of the incapacitated person shall be in such person and not in the guardian. The property shall be subject to the possession of the guardian and to the control of the court for the purposes of administration, sale or other disposition."

Accordingly, it is proper for a guardian to alert the court to the possible loss of property, such as possible termination of the leasehold at issue here. Nor should it be ignored that the guardian's application to the guardianship court for a stay, brought pro se, conserves the ward's estate by avoiding the increasingly high cost of retaining a landlord-tenant attorney for motion practice against the holdover, serving the interest of retaining funds for the care of the ward, and is to be much preferred to a contempt motion based upon the landlord's failure to secure permission to sue the guardian.

In relation to housing issues, the involvement of the court which appointed a guardian under article 81 of the Mental Hygiene Law is particularly critical. The statute itself sets tests to be used to determine a ward's proper abode, for Mental Hygiene Law § 81.22 (a) (9) reads as follows:

"9. * * * the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility * * * or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person." (Emphasis added.)

Thus, a guardian must take action to preserve housing in the community when feasible, as is most often desired by the ward (see, Galante v Bucciarelli, supra, 130 Misc 2d at 1051 ["the elderly * * * 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"]). Indeed, if a ward is placed in a skilled nursing facility, a guardian has a duty to continue to monitor the ward's condition and, if appropriate, relocate the ward to housing in the community, because a nursing home placement should not become "effectively `irrevocable'" (Matter of Gambuti [Bowser], 242 AD2d 431, 434 [1st Dept 1997] [vacating discharge of guardian after ward placed in nursing home]).

The significance of availability of housing in the community is further underscored by the statutory and case law recognition that a ward has a liberty interest supporting a community residence. This concept is reflected in the requirement that a guardianship court must appoint counse...