GUARDIAN AD LITEM - WHO PAYS?

If your defendant is in need of a Guardian Ad Litem, this may be an extra cost in the litigation.

41-43 Lawrence Realty LLC v Thompson, 2019 NY Slip Op 51068(U), Decided on June 26, 2019, District Court Of Nassau County, First District Fairgrieve, J.

"As provided by CPLR 1202(a), "[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative...." Also, pursuant to CPLR 1204:

"A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered."

In the instant matter, petitioner's counsel acknowledges that he received the subject order on February 4, 2019. He further states that he only skimmed the order and did not see the provision that the petitioner would be required to pay the legal fees of the guardian ad litem pursuant to CPLR 1204. He further argues that since the order was issued by the court sua sponte, the petitioner did not have an opportunity to oppose the inclusion of this provision. However, petitioner's counsel fails to explain why he waited almost two (2) months to challenge same. Regardless, as previously stated, the court may sua sponte allow a guardian ad litem to be paid in whole or part by any other party (see CPLR 1202[a] and 1204), and petitioner's attorney has not provided any legal authority in support of the instant motion. Accordingly, the petitioner's motion is denied in all respects.

In his cross motion, Mr. Imbroto asserts that he expended 15.9 hours on this matter, and that his hourly billing rate is $375.00 per hour, for a total $5,962.00. He also separately sets forth each of the dates, the amount of time expended and a description of the services rendered. In his motion, petitioner's counsel argues these fees are "way out of line" and that guardian ad litems in the City of New York "are paid a $675.00 flat fee whether they are appointed by motion or sua sponte" (Notice of Motion, ¶ 6).

"In determining reasonable compensation, the responsibility, time and attention required, the result obtained, and the funds available to the person who must bear the cost of the guardian ad litem must be considered" (Alias v Olahannan, 15 AD3d 424, 425 [2d Dept 2005]). Based upon all of the circumstances presented herein, the court determines that the guardian ad litem's fee should be reduced to a rate of $250.00 per hour. Accordingly the petitioner shall pay to Mr. Imbroto the amount of $3,975.00, representing 15.9 hours at a rate of $250.00 per hour, in reasonable compensation for services rendered."

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."