KINCH v. HERNANDEZ (2019)

The decision/order in this motion is as follows:

Petitioner commenced this holdover proceeding on July 12, 2019 after serving respondent with a thirty day notice terminating respondent's tenancy. The petition alleges that respondent is a month to month tenant. Respondent now moves to dismiss the proceeding pursuant to CPLR sec. 3211(a)(3) and RPAPL sec. 721 asserting that petitioner lacks legal capacity to sue. In the alternative, respondent sought leave to interpose an answer. Respondent contends that petitioner, as the Article 81 guardian, brought the proceeding in her own name instead of the name of the alleged incapacitated person (hereinafter AIP). In addition, the petition describes petitioner as the owner in fee of the premises and the landlord. However, petitioner's ward is the owner of the subject premises. Respondent argues that an agent of the landlord is prohibited from bringing a proceeding in his/her name. Further, respondent contends that the defect of bringing the proceeding in the name of someone who lacks capacity to sue is not amendable.

In opposition, petitioner asserts that Supreme Court authorized petitioner to bring this proceeding, and cites RPAPL sec. 721(9) which provides that a proceeding may be brought by the receiver of a landlord, purchaser or any other person so entitled to apply, when authorized by the court. Petitioner attached the guardian's commission dated March 15, 2019 appointing her as a temporary guardian of property, and the Supreme Court order dated July 29, 2019 appointing a real estate appraiser, a real estate broker and landlord/tenant counsel. The order further authorizes counsel to commence a holdover proceeding in housing court. In addition, petitioner contends that respondent's request to interpose an answer should be denied because respondent failed to submit a proposed answer.

Respondent replied that, as captioned, the guardian is the petitioner in her own interest, and she seeks restoration of possession of the property to herself. Respondent acknowledges that a guardian has authority to bring a proceeding. However, respondent contends that the Supreme Court order did not grant petitioner permission to bring the proceeding in her name, and it should have been brought in the name of the AIP. Respondent also argues that there is no support for petitioner's claim that the guardian is authorized to bring a proceeding pursuant to RPAPL sec. 721(9).

RPAPL sec. 721 sets forth who may bring a summary proceeding to recover possession of real property, and RPAPL sec. 721(9) provides that a receiver, purchaser or other person so entitled to apply may bring a proceeding when authorized by the court. The Supreme Court order dated July 29, 2019 clearly authorizes the commencement of this proceeding. Petitioner, as a fiduciary appointed by the court, and appointed as the temporary Article 81 guardian, pursuant to MHL sec. 81.01, to satisfy the property management needs of the AIP in a manner tailored to the individual needs of the AIP ( see 1234 Broadway LLC v. Feng Chai Lin, 25 Misc. 3d 476, 883 N.Y.S.2d 864 [2009]), falls within the category of persons authorized by the court pursuant to RPAPL sec. 721(9).

As to the question of whether petitioner may bring the proceeding in her name, a guardian appointed by the court has fiduciary responsibilities, and is not merely an agent of the AIP. Therefore, the cases cited by respondent which hold that a person holding a power of attorney or an attorney for a party may not commence a summary proceeding are inapplicable.

Moreover, CPLR sec. 1004 provides that specified representatives who have legal relationships which are mostly of a fiduciary character (Siegel New York Practice 5th Ed. sec 137) may bring an action or proceeding, or suit may be brought against the representative instead of the person represented. The specified representatives are as follows: executor or administrator of a decedent's estate; a guardian of an infant's property; a committee of a declared incompetent; a conservator of a conservatee; a trustee of an express trust; an insured to whom the insurer has become subrogated; and the intermediary in a third party beneficiary situation (Siegel New York Practice 5th Ed. sec 137). Under Article 81 of the Mental Health Law as enacted in 1993, the term incapacitated person was substituted for all dependent persons, and guardian for the person appointed to look after the dependent's needs. The law also provides that the terms “conservators” or “committees” shall be construed to include the term guardian (Siegel New York Practice 5th Ed. secs. 69 (b), 194). Therefore, petitioner, as the court appointed temporary guardian of the AIP's property, is permitted to bring this proceeding in her name pursuant to CPLR sec. 1004. Further, Mental Hygiene Law sec. 81.29(c) provides the property of an incapacitated person may be subject to the possession of the guardian and to the control of the court for the purposes of administration, sale or other disposition only to the extent directed by the order appointing the guardian, but title to all property remains in the name of the incapacitated person. The Supreme Court has appointed petitioner as guardian of the AIP's property, and has expressly authorized commencement of the instant proceeding. Pursuant to MHL sec. 81.29(c) the guardian may take possession of the property contrary to respondent's assertion.

Respondent has submitted a proposed answer which is annexed to the motion as Exhibit A, and this answer is now deemed served and filed.

Based on the foregoing, respondent's motion seeking dismissal of the proceeding is denied, and the portion of the motion which requests leave to file an answer is granted.

Cheryl J. Gonzales, J.