Friday, October 21, 2016
APPOINTING A GAL IN SUMMARY PROCEEDINGS
INWOOD VENTURA ASSOC., LLC v. BONOMME, 2016 NY Slip Op 30743 - NY: City Court, Civil Court 2016:
"CPLR § 1201 provides that a person shall appear by a guardian ad litem if she ". . . is an adult incapable of adequately prosecuting or defending his rights."
CPLR § 1203 provides that no default judgment may be entered against an adult incapable of adequately protecting her rights, where a GAL has been appointed until twenty days after such appointment.
In the practice commentaries to CPLR § 1203 Vincent Alexander states ". . . if it is demonstrated upon a motion to vacate a default judgment in an action that the defendant was not adequately capable of defending, the judgment must be vacated if such defendant had no guardian ad litem at the time of the default."
However, the cases cited by Mr. Alexander in support of this proposition have an added factor not present in the case at bar, namely that a party knew or had reason to know of the incapacity at the time the default was entered [Fischer v Fischer 21 AD3d 554, 2nd Dept. 2005 (denial of motion to vacate default reversed where it was undisputed that adverse party was on notice of mental disability); Barone v Cox 51 AD2d 115, 4th Dept., 1976 (holding error to deny motion to vacate default against a party who suffered from mental deterioration where plaintiff knew or had reason to know of defendant's condition); Sarfaty v Sarfaty 83 AD2d 748 4th Dept., 1981 (error to deny motion to vacate default judgment where husband and his attorney knew wife had been under psychiatric care and was a patient in a mental health center of a general hospital); Oneida National Bank and Trust Co. Of Central New York v Unczure 37 AD2d 480, 4th Dept., 1971 (failure of plaintiff to bring defendant's mental disability to court's attention required that default judgment be vacated); see also State v Kama 267 AD2d 225, 2nd Dept., 1999 (where state was on notice of patient's mental disability, default judgment would be vacated)
While the above referenced cases all concern situations where a party knew of the disability prior to the entry of the default, the language cited from the cases is more absolute. In its holding in, Oneida National Bank and Trust Co. Of Central New York v Unczure (supra) the Appellate Division, Fourth Department stated in reference to CPLR § 1201 and CPLR § 1203:
The two quoted statutory provisions are to be read together and interpreted as requiring the appointment of a guardian ad litem in every case where the defendant is an adult incapable of adequately protecting his rights, before a default judgment may be entered against him. With respect to infant defendants for whom no guardian ad litem has been appointed, the courts have long held that no jurisdiction was acquired and that judgments obtained in such actions are void. The same rule should apply to an adult incompetent.
While this language is seemingly absolute and has been cited without reservation by other courts, the quote continues by stating:
This places the burden upon a plaintiff who has notice that a defendant in an action is under mental disability, to bring that fact to the court's attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendants interest. For failure of the Bank to employ such procedure to safeguard the interests of its mentally ill debtor, we hold that Special Term properly vacated the default judgment . . . (Oneida, supra at 483 citations omitted, emphasis added).
The proposition that default judgments against persons unable to adequately defend their rights prior to the appointment of a GAL are not void as a matter of law is further supported by other cases where courts did not grant such relief. For example, in Shad v Shad (167 AD2d 532, 2nd Dept., 1990) the husband obtained a default judgment against his wife who was mentally ill and under long term psychiatric care. The relief obtained on default included the sale of the marital residence and a warrant of eviction to remove the wife from the marital residence. The Appellate Division held that a hearing was required to determine whether a guardian ad litem should be appointed for the wife, and further held ". . . if the appointment of a guardian ad litem is deemed necessary, the wife is granted a stay of the eviction for 60 days following the appointment . . . (Id at 532)." There was no finding that the underlying judgment should be vacated."