Rand v. Lockwood

CourtUnited States State Supreme Court (New York)
Writing for the CourtDANIEL G. ALBERT
Citation316 N.Y.S.2d 950,65 Misc.2d 182
PartiesDavid RAND, Plaintiff, v. John Marshall LOCKWOOD as Executor of the Estate of David D. Tiffany, Deceased and United States of America, Defendants.
Decision Date04 November 1970

Page 950

316 N.Y.S.2d 950
65 Misc.2d 182
David RAND, Plaintiff,
v.
John Marshall LOCKWOOD as Executor of the Estate of David D.
Tiffany, Deceased and United States of America, Defendants.
Supreme Court, Special Term, Nassau County, Part I.
Nov. 4, 1970.

Vincent J. Flanagan, Mineola, for plaintiff.

Ferris, Bangs, Davis, Trafford & Syz, New York City, for defendant Lockwood.

DANIEL G. ALBERT, Justice.

In this action brought pursuant to Article 15 of the Real Property Actions and Proceedings Law, the plaintiff, who obtained a deed to the subject premises from the Treasurer of Nassau County, dated April 1, 1969, on the basis of several allegedly unpaid tax liens, secured a judgment declaring him to be the owner of the premises. The judgment, entered November 13, 1969, was granted upon the defendant David D. Tiffany's default in appearing and upon the defendant United States of America's default in opposing plaintiff's motion for summary judgment.

By an order of this Court (D'Auria, J.), dated August 21, 1970, the executor of the defendant Tiffany, who died on June [65 Misc.2d 183] 20, 1970, was substituted as a party defendant in decedent's place. By the instant application, the executor seeks an order: (1) vacating the default judgment previously entered herein; (2) permitting him to interpose an answer; (3) vacating the deed from the County Treasurer to plaintiff, and (4)

Page 951

directing the discharge of plaintiff's tax lien upon the payment into Court of the amount thereof with interest.

The papers submitted in support of the application present a strong evidentiary showing that at the time the action was commenced and at the time the default judgment was entered, the decedent David D. Tiffany, although not judicially declared an incompetent, was 'an adult incapable of adequately prosecuting or defending his rights' (CPLR 1201). As such, he should have been represented in the action by a guardian ad litem and, indeed, it is questionable whether any appearance by the defendant Tiffany either Pro se or by an attorney, without the appointment of a guardian ad litem, would have been authorized (cf. CPLR 321(a)).

Additionally, it appears that the summons and complaint were served upon the decedent by substituted service under former subdivision (3) of CPLR 308. Under the circumstances revealed by the moving papers, utilization of that method of service raises even more doubt that the decedent was capable of understanding the processes...

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3 practice notes
  • People v. Siebenrock
    • United States
    • New York Court of Special Sessions
    • 14 December 1970
    ...knowledge of the offense (whether or not he was an eye witness) as long as the prosecution has (1) made a sufficient disclosure so the [65 Misc.2d 182] defendant may prepare his defense, and (2) is limited in its proof to such disclosure; it does not matter who verifies the Bill of The Cour......
  • Fin. Freedom Acquisition LLC v. Jackson, No. 8473/2011.
    • United States
    • United States State Supreme Court (New York)
    • 24 December 2012
    ...... either pro se or by an attorney, without the appointment of a guardian ad litem, would have been authorized.” (Rand v. Lockwood, 65 Misc.2d 182, 316 N.Y.S.2d 950 [Sup Ct Nassau County 1970] ). A person specified in CPLR 1201 may only appear by a guardian ad litem. * * * * * * * * *CONCL......
  • 466 Associates v. Murray
    • United States
    • New York City Court
    • 17 May 1991
    ...by psychiatrists for each party, maintaining that different conclusions have been drawn as to his present condition. In Rand v. Lockwood, 65 Misc.2d 182, 183, 316 N.Y.S.2d 950, 951 the Court "The papers submitted in support of the application present a strong evidentiary showing that at the......
3 cases
  • People v. Siebenrock
    • United States
    • New York Court of Special Sessions
    • 14 December 1970
    ...knowledge of the offense (whether or not he was an eye witness) as long as the prosecution has (1) made a sufficient disclosure so the [65 Misc.2d 182] defendant may prepare his defense, and (2) is limited in its proof to such disclosure; it does not matter who verifies the Bill of The Cour......
  • Fin. Freedom Acquisition LLC v. Jackson, No. 8473/2011.
    • United States
    • United States State Supreme Court (New York)
    • 24 December 2012
    ...... either pro se or by an attorney, without the appointment of a guardian ad litem, would have been authorized.” (Rand v. Lockwood, 65 Misc.2d 182, 316 N.Y.S.2d 950 [Sup Ct Nassau County 1970] ). A person specified in CPLR 1201 may only appear by a guardian ad litem. * * * * * * * * *CONCL......
  • 466 Associates v. Murray
    • United States
    • New York City Court
    • 17 May 1991
    ...by psychiatrists for each party, maintaining that different conclusions have been drawn as to his present condition. In Rand v. Lockwood, 65 Misc.2d 182, 183, 316 N.Y.S.2d 950, 951 the Court "The papers submitted in support of the application present a strong evidentiary showing that at the......

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