Sarfaty v. Sarfaty
Citation | 83 A.D.2d 748,443 N.Y.S.2d 506 |
Parties | Isaac J. SARFATY, Respondent, v. Evelyn M. SARFATY, Appellant. |
Decision Date | 09 July 1981 |
Court | New York Supreme Court Appellate Division |
Goldstein, Goldman, Kessler & Underberg by Jerrold Reilly, Rochester, for appellant.
Davidson, Fink, Cook & Gates by S. Gerald Davidson, Rochester, for respondent.
Before DILLON, P. J., and CARDAMONE, HANCOCK, DENMAN and SCHNEPP, JJ.
Defendant wife appeals from an order which denied her CPLR 5015 motion to vacate a default judgment of divorce based on abandonment. She appeared and filed an answer generally denying the allegations of the complaint. At a March 28, 1980 calendar call she was permitted to proceed pro se after the court granted her attorney leave to withdraw. Defendant expressed a continued desire for reconciliation and undoubtedly attempted to impede the granting of a divorce to plaintiff. On April 16, 1980, while hospitalized in the Genesee Hospital Department of Psychiatry following a suicide attempt on March 28, 1980, defendant was personally served with a notice to appoint another attorney together with a court order directing that a notice be served personally upon her in the same manner as a summons (CPLR 321, subd. c) and that the case would appear on the May 19, 1980 day calendar. When defendant failed to appear the case was adjourned until May 28, 1980. A certified letter, which was mailed to her by plaintiff's attorney advising of the adjourned calendar date, was returned as unclaimed and, upon her failure to appear, the default decree of divorce was granted. It appears from her moving papers that when defendant was discharged from the hospital on May 5, 1980 she recuperated at her mother's home in New Jersey upon her psychiatrist's recommendation until she returned to Rochester on May 26, 1980.
Although plaintiff and his attorney possessed knowledge that defendant had been under psychiatric care, service of the notice upon defendant was not ineffective based upon a failure to comply with the regulations governing service of process upon mental health patients because the record does not establish that the Genesee Hospital is a facility within the meaning of those regulations (14 NYCRR 22.2; see Mental Hygiene Law, §§ 1.03, subd. 10, and 31.02, subd. par. 2). Since, however, the pro se defendant was a patient in a mental health center of a general hospital, had been under psychiatric care for a number of years and had attempted to take her own life, she certainly may have been "an adult incapable of adequately prosecuting or defending rights" (CPLR 1201) against whom a default judgment may not be entered unless a guardian ad litem is first appointed (CPLR 1203; Palaganas v. D.R.C. Inds., 64 A.D.2d 594, 407 N.Y.S.2d 170; Barone v. Cox, 51 A.D.2d 115, 118, 379 N.Y.S.2d 881; Oneida Nat. Bank & Trust Co. of Cent. N.Y. v. Unczur, 37 A.D.2d 480, 326 N.Y.S.2d 458). In Oneida Nat. Bank & Trust Co. of Cent. N.Y. v. Unczur (supra, pp. 483-484, 326 N.Y.S.2d 458) we held that sections 1201 and 1203 of the CPLR: ...
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