"It is well settled that one cannot voluntarily assume the relation of attorney for an incompetent". ( Matter of Deimer, 274 App. Div. 557, 559; see, also, Shatsky v. Sea Gate Assn., 11 Misc.2d 905.) The incompetent, if he appeared in the proceeding, was required to appear by his committee and/or by a guardian ad litem.
Legal precedent clearly supports a motion by a guardian seeking a stay of litigation, upon the basis that approval of the appointing court must be secured to sue a guardian in his or her representative capacity. Once a guardian is appointed for an incapacitated person, litigation against a guardian as representative of the incapacitated person should not proceed without permission of the court which appointed the guardian ( Carter v. Beckwith, 128 N.Y. 312, 316; Smith v. Keleltas, 27 App. Div. 279 [1st Dept. 1898]; Shatsky v. The Sea Gate Association, 11 Misc.2d 905, 906 [Sup. Ct. Kings Co. 1958]; Sinley v. Estco, 25 Misc.2d 172, 175 [Sup. Ct. Nassau Co. 1960]; Galante v. Bucciarelli, 130 Misc.2d 1050 [Justice Ct. Westchester Co. 1986, Nachman, J.]). It is accepted procedure that the claimant may move for such permission or that the fiduciary may seek a stay (see, Copeland v. Salomon, 56 N.Y.2d 222, 229, quoting Pyrun v. Black, 105 App. Div. 302, 304 [3rd Dept. 1905], aff'd as Pyrun v. McCreary, 182 N.Y. 568)
Prior to the termination date, the guardian sought a stay of the notice of termination from this Court and also sought a permanent stay of a summary proceeding seeking eviction. Legal precedent clearly supports a motion by a guardian seeking a stay of litigation, upon the basis that approval of the appointing court must be secured to sue a guardian in his or her representative capacity. Once a guardian is appointed for an incapacitated person, litigation against a guardian as representative of the incapacitated person should not proceed without permission of the court which appointed the guardian (Carter v Beckwith, 128 NY 312, 316 [1891]; Smith v Keteltas, 27 App Div 279 [1st Dept 1898]; Shatsky v Sea Gate Assn., 11 Misc 2d 905, 906 [Sup Ct, Kings County 1958]; Sinley v Estco, Inc., 25 Misc 2d 172, 175 [Sup Ct, Nassau County 1960]; Galante v Bucciarelli, 130 Misc 2d 1050 [Just Ct, Westchester County 1986, Nachman, J.]). It is accepted procedure that the claimant may move for such permission or that the fiduciary may seek a stay (see, Copeland v Salomon, 56 NY2d 222, 229 [1982], quoting Pruyn v Black, 105 App Div 302, 304 [3d Dept 1905], affd sub nom. Pruyn v McCreary, 182 NY 568 [1905] [in relation to the same principle as applicable to a court-appointed receiver, "(t)he court, on motion, may set aside or stay the proceeding commenced without its sanction"]).
For this reason the court granted the defendant's motion to open the default judgment. See Ridgeway v. Ridgeway, 180 Conn. 533, 539 (1980); Cottrell v. Connecticut Bank Trust Co., 175 Conn. 257, 261-62 (1978); Shatsky v. Sea Gate Association, 11 Misc.2d 905, 172 N.Y.S.2d 947 (1958); 53 Am.Jur.2d, Mentally Impaired Persons, ยง 170. The defendant has now moved for a "motion for order" seeking (1) to dismiss this action, (2) the return of his security deposit, and (3) reimbursement of his filing fee and attorneys' fees incident to the motion to open the judgment.
"However, before any action or proceeding may be instituted against a committee, leave of the court to sue such committee must be obtained." (Shatsky v Sea Gate Assn., 11 Misc.2d 905, 906; Smith v Keteltas, supra; Grant v Humbert, 114 App. Div. 462; Dean v Halliburton, 213 App. Div. 831.) The Uniform Justice Court Act gives a Village Court civil jurisdiction over causes of action arising within such village (UJCA 201 [b]).