Opinion
570185/03.
Decided October 8, 2003.
Plaintiff appeal from an order of the Civil Court, New York County, entered December 16, 2002 (Eileen N. Nadelson, J.) which conditionally granted defendants' cross motions to strike the complaint pursuant to CPLR § 3126.
Appeal from order entered December 16, 2002 (Eileen N. Nadelson, J.) dismissed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
The December 16, 2002 order appealed from, conditionally granting defendants' cross motions to strike the complaint based upon the pro se plaintiff's discovery defaults, was superseded by two subsequent, unappealed court orders, including the order of February 19, 2003 which "stayed" a determination on defendants' cross motions while affording plaintiff an opportunity to obtain counsel. Inasmuch as plaintiff is no longer aggrieved, the appeal must be dismissed (CPLR § 5511). We note that, in view of the record references to plaintiff's apparent schizophrenic condition, the appointment of a guardian ad litem by Civil Court may be warranted to safeguard plaintiff's rights in responding to defendants' dismissal motions and prosecuting the action (CPLR §§ 1201, 1202(a); see, Tucker v. Smith, NYLJ, July 10, 2001, at 18, col 1 [App Term, 1st Dept]), a reality commendably acknowledged below by defendant Volunteers of America.
This constitutes the decision and order of the court.