Weingarten, Application of
| Decision Date | 16 May 1978 |
| Citation | 94 Misc.2d 788,405 N.Y.S.2d 605 |
| Parties | Application of Harry WEINGARTEN, for the appointment of a guardian ad litem for Sally Weingarten Yanowitz, a person of unsound mind, in an action about to be commenced against the State of New York and Rockland Psychiatric Center. |
| Court | New York Court of Claims |
Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City, for movant by Daniel L. Seltzer, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen. by Dace Epermanis, Asst. Atty. Gen., for defendants.
This is an application pursuant to Rules 1201 and 1202 of the Civil Practice Law and Rules, by Harry Weingarten, petitioner, for his appointment as Guardian Ad Litem for his sister, Sally Weingarten Yanowitz.
The petitioner alleges that on December 29, 1977 his sister was injured on the premises of Rockland Psychiatric Center due to the negligence of its agents, servants and employees, and that of the State of New York. He further alleges that she was then and still is "incarcerated" at Rockland.
The attorney for the defendants appeared on the submission of this motion, but took no position with respect thereto. It is obvious that Mrs. Yanowitz suffers from some emotional or psychiatric handicap and, although there was no opposition to this motion, we deem a person in her position to be a ward of the Court. It is consequently the primary responsibility of the Court to insure that her interests are protected and that she is afforded an opportunity to be heard. (Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 151 N.E.2d 887; Wurster v. Armfield, 175 N.Y. 256, 67 N.E. 584; see Code of Judicial Conduct, Canon 3(A)(4).)
The threshold question is whether this Court has the power to appoint a Guardian Ad Litem for her. CPLR 1201 provides in part:
"A person shall appear by his guardian ad litem . . . if he is an infant or person judicially declared to be incompetent and the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights."
Although Mrs. Yanowitz is referred to in the caption as "a Person of Unsound Mind", the petition fails to allege that she is incompetent or that she is incapable of adequately prosecuting her own rights. There is similarly no indication as to the nature or extent of her ailment.
In Matter of Lugo, 8 A.D.2d 877, 187 N.Y.S.2d 59, affd. 7 N.Y.2d 939, 197 N.Y.S.2d 740, 165 N.E.2d 581, the Appellate Division, Third Department, held that where an alleged incompetent was actually an inmate of an institution for mentally unsound persons, she was entitled to the appointment of a Guardian Ad Litem to protect her interests, even though she had not been judicially declared to be an incompetent. In that case, it appeared that Ms. Lugo had been committed to the Rockland State Hospital pursuant to the Mental Hygiene Law. As Judge BREITEL stated in Boland v. State of New York, 30 N.Y.2d 337, 342, 333 N.Y.S.2d 410, 414, 284 N.E.2d 569, 572:
In the present case, there is no indication as to whether Mrs. Yanowitz is subject to a Court order of commitment or whether, on the contrary, she was admitted to Rockland as a voluntary patient. We cannot therefore make a finding that she is incompetent. The statute does not however require that we do so; it is sufficient that we find Mrs. Yanowitz to be unable to effectively prosecute her rights.
Synthesizing and expanding upon the rules set forth in Lugo, supra and Boland, supra, this Court holds that when an application is made for appointment of a Guardian Ad Litem to represent a person who resides in a mental institution, whether on a voluntary basis or pursuant to court commitment, such residence creates a presumption that the person involved is unable to adequately prosecute or defend his rights. This presumption is rebuttable, but it is nevertheless sufficient prima facie to warrant the Court's entertaining the petition, and in a proper case, granting it.
However, based on the papers presently before the Court, we do not deem this a proper case for the reason that the application is defective in three respects.
First, the...
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...do not perceive much distinction between competency proceedings and commitment proceedings. See, e. g., Application of Weingarten, 94 Misc.2d 788, 405 N.Y.S.2d 605 (Ct.Cl.1978); Young v. State Department of Social Services, 92 Misc.2d 795, 401 N.Y.S.2d 955 (Ct.Cl.1978); Matter of Vance A, 1......
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