Opinion
No. 21440/03.
2012-04-23
O.C., an infant by her sister and Guardian, F.D., and F.D., Individually, Plaintiff, v. The CITY OF NEW YORK, Deegan Motel Corp., Stadium Motor Lodge Restaurant, Inc., and Stadium Hotel Corporation, Defendants.
Raymond B. Schwartzberg, Esq., Attorney for Plaintiffs. Raymond A. Cote, Esq., Attorney for Defendants.
Raymond B. Schwartzberg, Esq., Attorney for Plaintiffs. Raymond A. Cote, Esq., Attorney for Defendants.
ALEXANDER W. HUNTER JR., J.
An order to show cause was filed by plaintiffs' counsel in this action seeking to have a guardian ad litem appointed to protect the interests of the infant plaintiff in this action and continue this action, or, in the alternative, to be discharged as counsel for the plaintiffs. The order to show cause was made returnable on March 26, 2012 and even though F.D. and O.C. were duly served with a copy of the order, they failed to appear in court on that day.
This cause of action is for personal injuries sustained by the infant plaintiff on August 11, 2002 at a playground located at 1260 Sedgwick Avenue in Bronx County.
Plaintiffs' counsel was retained by the infant plaintiff's mother, A.B., to commence the instant lawsuit. After learning that the infant plaintiff was adopted by her sister, F.D., plaintiffs' counsel moved to substitute F.D. as guardian of the infant plaintiff and co-plaintiff in this action in place of A.B. That motion was granted by order of this court dated October 6, 2009.
Plaintiffs' counsel asserts that on or about November 2, 2009, this matter was settled in court for $8,000.00. The settlement was approved by F.D. via telephone and the settlement is subject to the entry of an Infant's Compromise Order. Plaintiffs' counsel avers that following the settlement, several attempts were made by his office to contact F.D. in an effort to obtain the infant plaintiff's physician's information so that a physician's affirmation could be procured for the Infant's Compromise Order. Since she could not be reached by telephone, letters were sent to her on January 19, 2012, March 5, 2010, April 8, 2010, May 26, 2010, June 23, 2010 and August 12, 2010. Plaintiffs' counsel eventually obtained the information for the infant plaintiff's physician and set up several appointments with the physician but the infant plaintiff failed to appear for each scheduled appointment. With the assistance of A.B., the infant plaintiff was taken to her physician and a physician's affirmation was completed.
On October 3, 2011, plaintiffs' counsel's office sent a letter to F.D. advising her that she and the infant plaintiff had to appear at his office to sign papers in order to submit the Infant's Compromise Order. An appointment was scheduled for October 14, 2011 but F.D. and the infant plaintiff failed to appear. Several telephone calls were placed by plaintiffs' counsel and letters were sent from late October 2011 to January 6, 2012 requesting that F.D. and the infant plaintiff appear at his office but she failed to do so which prompted the instant application.
Defendants submitted a motion seeking to vacate the settlement and re-designate this action as “active” rather than “disposed.” However, on the return date of the order to show cause, defendants' counsel withdrew the motion as a result of this order to show cause that was filed by plaintiffs' counsel.
C.P.L.R. § 1201 provides that, “Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property or, if there is no such guardian, by a parent having legal custody, or ... by another person or agency having legal custody ...” This court finds that the appointment of a guardian ad litem in place of F.D. for purposes of continuing this action would be fruitless at this time given F.D.'s failure to cooperate with plaintiffs' counsel.
Accordingly, it is hereby,
ORDERED, that F.D. and O.C. appear before this court on May 22, 2012 at 9:30 A.M. in room 408, 851 Grand Concourse, Bronx, New York. Failure of F.D. to appear and bring the infant plaintiff with her will be deemed a contempt of court and will subject F.D. to being fined and/or arrested at home, work, school or on the street and then imprisoned for up to 30 days in jail.
A copy of this order will be mailed by this court to F.D. and A.B.
This constitutes the order of this court.