Opinion
Motion No: 2013-01007 KC
02-06-2014
NYCHA-Ingersoll Houses, Respondent, v. Grafton Swain, Appellant.
, P.J.
MICHELLE WESTON
THOMAS P. ALIOTTA, JJ.
DECISION & ORDER ON MOTION
Motion by appellant 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 May 16, 2013. By decision and order on motion of this court dated July 3, 2013, it appearing that there is a question of fact as to whether appellant is an adult incapable of adequately defending his rights (CPLR 1201), the matter was remitted to the Civil Court for a hearing to be held within 30 days 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. By decision dated December 10, 2013, the Civil Court (Susan F. Avery, J.), without holding a hearing, determined that occupant was not an adult incapable of adequately defending his rights.
Upon the papers filed in support of appellant's motion and the papers filed in opposition thereto, upon this court's decision and order on motion dated July 3, 2013, and upon the December 10, 2013 decision of the Civil Court, it is
ORDERED, on the court's own motion, that the matter is again remitted to the Civil Court for a hearing, before a different judge, to be held within 30 days of this decision and order on motion, 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. The Civil Court shall cause its determination to be filed with the clerk of this court with all deliberate speed; and it is further,
ORDERED that appellant's motion is held in abeyance in the interim; and it is further,
ORDERED that the temporary stay contained in the order to show cause dated June 12, 2013 is continued pending the ultimate determination of appellant's motion.
In the papers submitted in support of appellant's motion, appellant's sister asserted, in effect, that appellant is an adult incapable of defending his own rights. Courts have a duty to protect incompetent parties who are incapable of protecting their own interests (see Sengstack v Sengstack, 4 NY2d 502, 509 [1958]; Shad v Shad, 167 AD2d 532, 533 [1990]). Thus, where there is a question of fact as to whether a guardian ad litem should be appointed, a hearing must be held (see CPLR 1201; Shad v Shad, 167 AD2d at 533; Kushner v Mollin, 144 AD2d 649 [1988]). Accordingly, the matter was remitted to the Civil Court for a hearing to afford appellant and his family members an opportunity to testify on the issue. As the Civil Court determined the issue without holding a hearing, the matter is again remitted to the Civil Court for a determination of the issue following a hearing. Appellant and/or his family members may also, if so advised, seek the appointment of an article 81 guardian in the Supreme Court.
ENTER:
Paul Kenny
Chief Clerk