New York Life Ins. Co. v. VK

• Decision Date: 16 February 1999
• Citation: 711 N.Y.S.2d 90,184 Misc.2d 727
• Court: New York Civil Court
• Parties: NEW YORK LIFE INSURANCE CO., Petitioner,<BR>v.<BR>V.K., Respondent.

184 Misc.2d 727
711 N.Y.S.2d 90

NEW YORK LIFE INSURANCE CO., Petitioner,
v.
V.K., Respondent.

February 16, 1999.

[184 Misc.2d 728]

Michael D. Hess, Corporation Counsel of New York City (Jack McKay and Alan Ferster of counsel), for Commissioner of New York City Department of Social Services.

Belkin Burden Wenig & Goldman, L. L. P., New York City (Dawn Arnold of counsel), for petitioner.

OPINION OF THE COURT

LUCY BILLINGS, J.

This case requires the court to examine the range of issues that arise in determining whether to appoint a guardian ad litem for a party. The court holds, first, that the Social Services Law does not confer the right to intervene upon a protective services agency seeking a guardian ad litem for a party. Without intervening, the agency, as a friend of a party, still may move for the guardian ad litem. The standard of proof to establish the grounds for a guardian ad litem is a preponderance

[184 Misc.2d 729]

of the evidence. Finally, where one party, such as petitioner here, is aware that another party may require a guardian ad litem, petitioner must bring that question to the court's attention. Any default judgment entered before the court determines that question is invalid.

In this landlord-tenant nonpayment proceeding, the Commissioner of the New York City Department of Social Services (DSS) has moved for (1) leave to intervene, (2) appointment of a guardian ad litem for respondent tenant V.K., and (3) vacatur of a default judgment. As outlined above and discussed further below, the court denies DSS' motion to intervene, grants the motion to appoint a guardian ad litem, and vacates the default judgment.

"A person shall appear by his guardian ad litem * * * if he is an adult incapable of adequately prosecuting or defending his rights." (CPLR 1201.)

"The court * * * may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of * * *

"2. a relative, friend or a guardian, committee of the property, or conservator; or

"3. any other party to the action." (CPLR 1202 [a].)

A guardian ad litem's purpose relates solely to the proceeding before the court, where he is to appear for and adequately assert and protect the rights of a party unable to do so herself. (E.g., W. v M., NYLJ, July 28, 1997, at 28, col 5 [Sup Ct, NY County]; Kings 28 Assocs. v Raff, 167 Misc 2d 351, 355-356 [Civ Ct, Kings County 1995].)

I. INTERVENTION

If DSS were made a party to this proceeding, then based on that status DSS could move for appointment of a guardian ad litem for respondent. (CPLR 1202 [a] [3].) The court must permit a person to intervene as a party when a State statute confers the absolute right to intervene. (CPLR 1012 [a] [1].) The court may permit intervention either when a State statute confers the right in the court's discretion or when "the person's claim or defense and the main action have a common question of law or fact." (CPLR 1013.) In a special proceeding, such as this one, intervention is allowed only by leave of the court. (CPLR 401.)

Without reference to CPLR 1012 or 1013, DSS relies exclusively on Social Services Law § 473. That statute gives

[184 Misc.2d 730]

DSS the authority to provide "protective services" specifically including: "arranging * * * for commitment, guardianship, or other protective placement * * * either directly or through referral to another appropriate agency" (Social Services Law § 473 [1] [c]), and other services set forth in the regulations. (Social Services Law § 473 [1] [f].) These services include: "enlisting the services of other agencies and professionals" (18 NYCRR 457.6 [b]), and "providing advocacy and assistance in arranging for legal services to assure receipt of rights and entitlements due to adults at risk." (18 NYCRR 457.1 [d] [8].) In addition, 18 NYCRR 457.6 (a) specifically requires DSS "to pursue appropriate legal intervention" under specific articles of the Mental Hygiene Law, Family Court Act, and Surrogate's Court Procedure Act that authorize hospitalization of mentally ill persons, education of mentally retarded persons, guardianships of a person or property, and orders of protection.

While seeking a guardian ad litem is consistent with the specified services that Social Services Law § 473 and the regulations under it authorize DSS to provide, nowhere do those laws confer upon DSS the right to intervene, as contemplated by CPLR 1012 (a) (1), to seek a guardian ad litem as provided in CPLR article 12. In contrast to Social Services Law § 473, statutes that do confer a right to intervene explicitly state that right and the specific type of case and purpose in the case for which that right is conferred. (Domestic Relations Law § 172 [1]; Family Ct Act § 1035 [d]; Lien Law § 72 [3] [b].)

The fact that the detailed regulations under Social Services Law § 473 omit reference to CPLR article 12 and guardians ad litem, while specifically listing other legal interventions similar to but distinct from guardians ad litem, compels the conclusion that Social Services Law § 473 does not confer such a right. DSS' failure to show any need for intervention in this proceeding...