Opinion
# 2012-040-015 Claim No. 118214 Motion No. M-78314 Cross-Motion # 2012-040-015 Claim No. CM-78683 CM-80312 # 2012-040-015 Claim No. CM-80489
03-29-2012
DOCTER v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss granted. Cross-motion to (1) late file denied; (2) amend the caption of the Claim denied; and (3) appoint a GAL is adjourned pending a hearing. Case information
UID: 2012-040-015 In the Matter of the Application of Claimant(s): KAREN J. DOCTER, ESQ., AS GUARDIAN OF THE PROPERTY OF ANTHONY MASSARO Claimant short name: DOCTER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant Caption amended to reflect the State of New York as name) : the proper defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 118214 Motion number(s): M-78314 Cross-motion number(s): CM-78683, CM-80312, CM-80489 Judge: CHRISTOPHER J. McCARTHY LERNER LAW By: Dennis S. Lerner, Esq. BRINDISI, MURAD, BRINDISI, Claimant's attorney: PEARLMAN, JULIAN & PERTZ LLP By: Robert J. Julian, Esq. Stephanie A. Palmer, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Bonnie Gail Levy, Esq., AAG Third-party defendant's attorney: Signature date: March 29, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's Motion No. M-78314 to dismiss the Claim is granted. Claimant's cross-motions: (1) for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6) (Motion No. CM-78683) is denied; (2) to amend the caption of the Claim (Motion No. CM-80312) is denied; and (3) to appoint Karen J. Docter, Esq., as guardian ad litem, nunc pro tunc, (CM-80489) is adjourned pending a hearing.
This Claim, which is brought by Karen J. Docter, Esq., as Guardian of the property of Anthony Massaro, the Claimant, was filed with the Clerk of the Court on April 1, 2010 and served upon Defendant on April 5, 2010. Ms. Docter asserts that she was appointed temporary Guardian of the Property of Mr. Massaro by Decree dated February 2, 2010, executed by Onondaga County Surrogate Court Judge Ava S. Raphael (see Ex. A attached to Claim).
Claimant alleges:
That he was born on January 5, 1949 at the Rome State School, a mental institution owned and operated by the State of New York. He was subsequently removed from the Rome State School at the age of ten months and, upon information and belief, placed in the St. Mary's Maternity Home in Syracuse, New York. Thereafter, in May of 1953, Mr. Massaro was placed into a foster home until 1958 when he was removed because he was being sexually abused. He was then placed into a second foster home until it was found that he was being physically and verbally abused. Thereafter, Mr. Massaro was placed in the House of Providence in Syracuse, New York until 1961, when he was transferred to the Syracuse State School.
According to Defendant, Claimant was discharged from the Syracuse State School in December 1967. Claimant further asserts that he began working in 1968, at age 19, was under the supervision of his parole officer and the Syracuse State School, lived in foster homes, but routinely left to live on his own. He left Syracuse in 1975 and did not return until 2000.
For many years, Mr. Massaro has sought to find out information about his biological parents and was denied the same by the State. In approximately July 2008, Anthony Massaro petitioned for an Order to Show Cause to be provided with certain information with regard to his father, the circumstances of his conception, records and documentation regarding the whereabouts and circumstances of the person believed to be his likely father, proof of advising his likely father that he may have a son, facilitation of a meeting between the father and son and granting such other and further relief as that Court may have deemed just and proper.
As a result of the Order to Show Cause, an Order was issued by Honorable Deborah H. Karalunas, Supreme Court, Onondaga County, on October 22, 2008, wherein the State was ordered to produce, for in-camera review by the Court, the records requested by the petitioner for an interest-of-justice analysis.
Thereafter, upon review and the finding of that Court, it was ordered that any and all records within the possession of the State of New York Office of Mental Retardation and Developmental Disability ("OMRDD") and/or agencies and contractors thereof pertaining to the circumstances of Mr. Massaro's conception, the likely father's involvement, and the State's responses thereto, be provided to Mr. Massaro. It was further ordered that any and all records in the possession of the OMRDD, and/or agencies and contractors thereof, regarding the whereabouts and circumstances of the person believed to be Mr. Massaro's likely father be provided to Mr. Massaro.
That Order was filed on October 23, 2008 and served with notice of entry upon the Attorney General's Office on October 29, 2008 and the records were subsequently turned over to Mr. Massaro and his lawyer on or after November 1, 2008.
A Notice of Intention to File a Claim was served upon the Attorney General's Office via both personal service and certified mail on January 26, 2009. The Notice of Intention was verified by Mr. Massaro.
As set forth above, Ms. Docter was appointed temporary Guardian of the Property of Mr. Massaro by Surrogate Raphael in February 2010. Surrogate Raphael extended and renewed the temporary guardianship by Decree dated February 16, 2011.
Surrogate's Court Procedure Act ("SCPA") § 1756 provides as follows:
§ 1756. Limited guardian of the property
When it shall appear to the satisfaction of the court that such mentally retarded or developmentally disabled person for whom an application for guardianship is made is eighteen years of age or older and is wholly or substantially self-supporting by means of his or her wages or earnings from employment, the court is authorized and empowered to appoint a limited guardian of the property of such mentally retarded or developmentally disabled person who shall receive, manage, disburse and account for only such property of said mentally retarded or developmentally disabled person as shall be received from other than the wages or earnings of said person.
The mentally retarded or developmentally disabled person for whom a limited guardian of the property has been appointed shall have the right to receive and expend any and all wages or other earnings of his or her employment and shall have the power to contract or legally bind himself or herself for such sum of money not exceeding one month's wages or earnings from such employment or three hundred dollars, whichever is greater, or as otherwise authorized by the court.
The powers given to a guardian of the property of a mentally retarded or developmentally disabled person by SCPA § 1756 do not include the power to bring a lawsuit on behalf of that person. Thus, Ms. Docter lacked the legal capacity to properly commence this action against the State of New York on behalf of Mr. Massaro and, therefore, the Claim must be, and is hereby, dismissed (see Lichtenstein v State of New York, 93 NY2d 911 [1999], affg 252 AD2d 921 [3d Dept 1998]; Liddell v State of New York, 182 Misc 2d 133 [Ct Cl 1999], affd 278 AD2d 928 [4th Dept 2000].
Similarly, the Court denies the Motion of Ms. Docter to serve and file a Claim late pursuant to Court of Claims Act § 10(6) (Motion No. CM-78683). As Ms. Docter lacks the legal capacity to serve and file a Claim, the motion for permission to late file is denied.
As Ms. Docter lacks the capacity to bring this action, the Motion to amend the caption to strike the name of Ms. Docter (Motion No. CM-80312) is denied, as a claim that was not properly commenced cannot be amended.
The Court now turns to Ms. Docter's motion to be appointed guardian ad litem, nunc pro tunc, of Mr. Massaro (Motion No. CM-80489) pursuant to CPLR 1202(a)(2). Ms. Docter asserts that Mr. Massaro has been deemed to be incompetent by Dr. Thomas A. Lazzaro and Dr. Ray T. Forbes (see Affidavits of these Doctors submitted in opposition to State's motion to dismiss and in support of Claimant's cross-motion for permission to file a late claim). Ms. Docter asserts that both Dr. Lazzaro and Dr. Forbes have determined that "Mr. Massaro is mentally impaired and unable to overall function in society" (see ¶ 8 of Affidavit of Karen J. Docter, Esq., submitted in support of Cross-Motion to be appointed guardian ad litem).
Pursuant to CPLR 1202, the appointment of a guardian ad litem requires a finding that Mr. Massaro is incapable of "understanding the proceedings, defending [his] rights and assisting counsel" (Matter of Barbara Anne B., 51 AD3d 1018, 1019 [2d Dept 2008]; see Rapoport v Cambridge Development, LLC, 51 AD3d 530, 531 [1st Dept 2008]; Maso v State of New York, Ct Cl, Claim No. 115673, Motion Nos. M-75540, CM-75676, March 6, 2009, Mignano, J. [UID No. 2009-029-008]).
The Court's duty to protect an incompetent litigant has long been recognized (Sengstack v Sengstack, 4 NY2d 502, 509 [1958]; Matter of Latanza, 14 Misc 3d 476, 478 [Sup Ct, Nassau County 2006]). Upon a review of the record, it appears that Ms. Docter has complied with all the requirements of CPLR 1202(b). The Court will contact counsel to establish a mutually convenient date for a hearing to determine if Mr. Massaro is incapable of understanding the proceedings, defending his rights and assisting counsel, thus, necessitating the appointment of a guardian ad litem. The Court requires the presence of Mr. Massaro at the hearing so that the Court may make inquiries of him.
Finally, the Court would like to commend counsel for both sides for the extensive and diligent submissions that have been made in connection with this matter.
March 29, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on the State's Motion to Dismiss and Claimant's cross-motions (1) seeking permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6); (2) to amend the caption of the Claim; and (3) to appoint Karen J. Docter, Esq., as guardian ad litem for Anthony Massaro:
Papers Numbered
Notice of Motion (M-78314), Affirmation
and Exhibits Attached 1
Notice of Cross-Motion (CM-78683), Affidavits of
Dennis S. Lerner, Esq., Karen J. Docter, Esq.,
Ray T. Forbes, M.D., and Thomas A. Lazzaro, Ph.D.,
in Opposition to M-78314 and in Support of CM-78683,
Exhibits Attached and Memorandum of Law 2
Affirmation in [Opposition] to CM-78683 and in
Reply to Claimant's Reply to M-78314
of Bonnie Gail Levy, Esq. 3
Reply Affidavit of Dennis S. Lerner, Esq. 4
Supplemental Affirmation in Support of M-78314
and in Opposition to CM-78683, Exhibits Attached
and Memorandum of Law 5
Claimant's Responses to Questions Posed by the Court
and Exhibits Attached 6
Defendant's Letter Response to the Court 7
Reply to [Defendant's] Response to the Court 8
and Exhibits Attached
Notice of Cross-Motion (CM-80312),
Affirmation of Dennis S. Lerner, Esq., and Exhibits Attached 9
Affirmation of Bonnie Gail Levy, Esq.
in Opposition to CM-80312 10
Notice of Cross-Motion (CM-80489),
Affidavits of Dennis S. Lerner, Esq.,
Karen J. Docter, Esq., and Exhibits Attached 11
Affirmation of Bonnie Gail Levy, Esq.
in Opposition to CM-80489 12
Affirmation in Reply of Dennis S. Lerner, Esq. 13
Filed Papers: Claim