IN RE: the Application of Frances FEMINELLA for the Appointment of a Guardian Ad Litem for (2006)

Frances Feminella makes this ex parte application to the Court to be appointed guardian ad litem for Katherine Latanza, her mother, pursuant to CPLR 1202.   A recent decision (In re Smith-Guzman (Lainez), 11 Misc.3d 1092(A), 2006 WL 1232908 (Sup.Ct.Kings, 2006)), compels this Court to consider whether the appointment of a guardian ad litem is appropriate notwithstanding that such guardian lacks the power to settle the pending tort action instituted on her mother's behalf or to receive any settlement proceeds.

Petitioner's two siblings, Theresa Graci and Carmine Latanza, consent to the application and waive service.   Petitioner herself consents to her appointment (see, CPLR 1202(c)) and avers that she owns her own home and a business and is capable of answering in damages for any negligence or misconduct.   There is no indication that Katherine Latanza was given notice of this application.

Background Facts

Petitioner avers that Katherine Latanza, “was injured while a customer of the Plainview Diner.”   An unsworn letter from a physician states that;  “Katherine Latanza has many medical problems ․ [and] suffers from COPD, ASHD, PVD, Hypertension, Stroke, Senile Dementia among others.”   According to Petitioner's supporting affidavit, her mother has no “individually owned” assets other than the tort claim and lives in a rented apartment with a full time aide.   Katherine Latanza has executed a durable power of attorney appointing Petitioner with full powers and has also executed a Health Care Proxy and Living Will appointing Petitioner.

Discussion

The facts confronting Justice Diana Johnson in In re Smith-Guzman (Lainez), supra, differed from the present case in that the plaintiff was in a non-responsive vegetative state and no advance directives appear to have been in place.   The Court noted that a guardian ad litem would not be empowered to settle the pending tort matter.   It held that despite the fact that a Mental Hygiene Law Article 81 proceeding would be “longer-winded” and expensive, “The simpler procedure for obtaining a guardian ad litem was not created for the purpose of testing the waters first, to determine the feasibility of a monetary recovery ․” (Ibid.).

The court's duty to protect an incompetent litigant has long been recognized (Sengstack v. Sengstack, 4 N.Y.2d 502, 509, 176 N.Y.S.2d 337, 151 N.E.2d 887 (1958)) and the duty is not limited to cases in which there has been judicial determination of lack of capacity (Wurster v. Armfield, 175 N.Y. 256, 262, 67 N.E. 584 (1903);  Barone v. Cox, 51 A.D.2d 115, 118, 379 N.Y.S.2d 881 [4th Dept., 1976] ).   In the discharge of its duty a court may appoint a guardian ad litem to prosecute a lawsuit on behalf of a person who lacks capacity notwithstanding that there has been no formal adjudication of incompetence.  (Tudorov v. Collazo, 215 A.D.2d 750, 627 N.Y.S.2d 419 [2d Dept., 1995];  Hawley v. State, 28 Misc.2d 150, 217 N.Y.S.2d 107 [Ct. of Claims, 1961] ).   Where, as here alleged, the alleged incompetent has no property other than the subject matter of the lawsuit, it has been held proper to appoint a guardian ad litem since there, “will be time enough to determine whether a conservator [under the former statute] is to be appointed to receive, manage and conserve the proceeds ․” (Matter of Stane (Dery), 86 Misc.2d 416, 417, 382 N.Y.S.2d 607 [Sup.Ct. N.Y.Co., 1976] ).

Certainly, a guardian ad litem lacks authority to apply for court approval of a settlement nor may he or she receive and disperse the settlement proceeds.  (Sills v. Fleet National Bank, 32 A.D.3d 1157, 821 N.Y.S.2d 313 [4th Dept., 2006] ).   In Matter of Lugo, 8 A.D.2d 877, 187 N.Y.S.2d 59 (1959), the Appellate Division rejected these “technical considerations” as a sufficient justification for requiring the appointment of what was then a committee under the Mental Hygiene Law rather than a guardian ad litem.   In Fales v. State, 108 Misc.2d 636, 638, 438 N.Y.S.2d 449 [Ct. of Claims, 1981], Judge Weisberg asserted that the Legislature had adopted the Matter of Lugo view;  “by amending CPLR 1201 to provide that a guardian ad litem may be appointed for an adult incapable of adequately prosecuting or defending his rights.'  (L. 1968, ch. 844;  emphasis added.)”

The appointment of a guardian ad litem, at least where the plaintiff alleged to be incapacitated has no appreciable assets other than the pending or potential lawsuit, has been found appropriate.  (See, Matter of Stane (Dery), supra ).   A proceeding under Article 81 of the Mental Hygiene Law involves expenses that may not be recouped from an alleged incapacitated person who has no assets and these expenses may be imposed upon a petitioner (MHL §§ 81.09(f), 81.10(f)).  Thus, requiring a proceeding under MHL Article 81 has the potential to act as a disincentive and thus deny an incapacitated person the protection the court is obligated to provide.

 Nevertheless, the Petition fails to comply with all of the procedural safeguards specified in CPLR 1202.   While the application contains the proposed guardian ad litem's consent and shows that she is able to answer in damages for any neglect or malfeasance in the discharge of her responsibilities (CPLR 1202(c)), no notice of this application has been served upon the person with whom Katherine Latanza resides or upon Katherine Latanza herself (CPLR 1202(b);  Weingarten v. State, 94 Misc.2d 788, 405 N.Y.S.2d 605 [Ct. of Claims, 1978] ).   Moreover, the evidence of Katherine Latanza's medical condition is not in a legally admissible form.   Finally, the Court will require Katherine Latanza's presence at a hearing at which testimony will be taken from at least the Petitioner so that the Court may make inquiry of Katherine Latanza herself.

The application is denied without prejudice to renewal upon compliance with this order.

It is, SO ORDERED.

GEOFFREY J. O'CONNELL, J.