Opinion
February 22, 1999
Appeal from the order of the Supreme Court, Westchester County (Fredman, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not improvidently exercise its discretion under CPLR 2221 when, upon granting reargument to the plaintiff, it vacated its prior dismissal of the complaint under CPLR 3211 (a)(3). The record supports the court's finding that it had "misapprehended" certain, facts, including, inter alia, that the mental disability attested to in the affidavit of the plaintiff's psychiatrist, which was submitted in support of her original application for a guardian ad litem, concerned only plaintiff's present and future incompetence to maintain the action, and did not date back to the commencement of the action. The court had dismissed the plaintiff's action based upon a mistake of fact, and it properly vacated the dismissal on the plaintiff's motion for reargument ( see, e.g., Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27; Schneider v. Solowey, 141 A.D.2d 813).
We also conclude that the defendant did not establish by the requisite clear and convincing evidence that the plaintiff had been incompetent when the instant lawsuit was initiated. The hospital and nursing home records relied upon by the defendant suggest that, during the relevant period, the plaintiff was often confused but sometimes was not ( see, e.g., Matter of Maher, 207 A.D.2d 133; Matter of Obermeier, 150 A.D.2d 863; Matter of Bobst, 165 Misc.2d 776, affd 234 A.D.2d 7; Mental Hygiene Law art 81; see also, Feiden v. Feiden, 151 A.D.2d 889; Matter of Waxman, 96 A.D.2d 906). In the absence of a judicial declaration of incompetence made in accordance with the statutory processes provided therefor, a person suffering from acknowledged mental defects may sue or be sued in his or her own name ( see, e.g., Sengstack v. Sengstack, 4 N.Y.2d 502; Keown v. Wright, 89 A.D.2d 932; Rau v. Tannenbaum, 85 A.D.2d 522).
Bracken, J. P., Santucci, Friedmann and Florio, JJ., concur.