Opinion
Motion No: 2013-00154 KC
06-13-2014
1150 Brighton Co., Respondent, v. Bella Persits and Alexander Persits, Appellants, et al., Undertenants.
, P.J.
THOMAS P. ALIOTTA
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
Motion by appellants for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered October 19, 2012, deemed from a final judgment of the same court entered October 19, 2012 (see CPLR 5512 [a]). By decision and order on motion of this court dated August 21, 2013, it appearing that there was a question of fact as to whether appellant Alexander Persits is an adult incapable of adequately defending his rights (CPLR 1201), the matter was remitted to the Civil Court for a hearing to determine whether appellant is an adult incapable of adequately defending his rights and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202, and appellants' motion was held in abeyance in the interim. By decision and order dated November 12, 2013, the Civil Court, following a hearing, determined that appellant Alexander Persits is an adult incapable of adequately defending his rights and appointed a guardian ad litem.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the Civil Court's decision and order dated November 12, 2013, it is
ORDERED, on the court's own motion, that, appellant Alexander Persits having been determined to be an adult incapable of adequately defending his rights and having appeared heretofore without a guardian ad litem, the appeal is dismissed, the final judgment and the order entered October 19, 2012, as well as the motion giving rise to the order, are vacated, and the matter is remitted to the Civil Court for all further proceedings (see Sarfaty v Sarfaty, 83 AD2d 748 [1981]; Rakiecki v Ferenc, 21 AD2d 741 [1964]); and it is further,
ORDERED that appellants' motion for a stay is denied as academic.
We note that the appointment of a guardian ad litem is not effective until the requisite written consent and affidavit have been filed (CPLR 1202 [c]), which has not been done here.
ENTER:
Paul Kenny
Chief Clerk