M.S., Plaintiff, v. K.S., Defendant. (2025)

As set forth herein, this post-judgment matrimonial litigation was commenced followed by the filing of a proceeding pursuant to Article 81 of the New York State Mental Hygiene Law (hereinafter “MHL”) asserting that the Defendant is an alleged incapacitated person, requiring this Court to determine if this action should be stayed pending the outcome of that proceeding.

Relevant Factual and Procedural Background

On August 13, 2004, the parties were married after which there were five children of the marriage being: (1) A.S. (D.O.B.: XX/XX/XXXX); (2) E.S. (D.O.B.: XX/XX/XXXX); (3) J.S. (D.O.B.: XX/XX/XXXX); (4) M.S. (D.O.B.: XX/XX/XXXX); and (5) B.S. (D.O.B.: XX/XX/XXXX) (hereinafter collectively “Children”).

On December 30, 2022, this matrimonial action was commenced with the filing of a Summons and Complaint.¹

On October 3, 2023, a judgment of divorce ² was entered, which incorporated by reference the terms of a stipulation of settlement.³

On June 30, 2025, Plaintiff's counsel filed a letter ⁴ requesting a Court conference to address post-judgment custody issues and an order was entered directing a conference to be held on July 3, 2025.⁵

On July 3, 2025, a conference was held before the undersigned wherein appearances were made by Plaintiff, Plaintiff's counsel and Defendant as a self-represented litigant. During that conference, following the Court's direct observation of Defendant and inquiry of Defendant, this Court determined Defendant to be in need of the appointment of a guardian ad litem (hereinafter “GAL”). During the conference, an Order ⁶ was entered appointing as GAL for Defendant Evan Wiederkehr, Esq., (hereinafter “Defendant's GAL”). Defendant's GAL was present at the conference and provided the Court with a fully executed GAL consent to appointment ⁷ and GAL financial affirmation ⁸ both of which were filed with the Court thereby effectuating the appointment.

On July 3, 2025, this Court appointed an attorney for the Children,⁹ and entered an Order ¹⁰ suspending Defendant's access time with the parties’ Children which included the following directive:

“To the extent that any proceedings are commenced pursuant to the New York State Mental Hygiene Law pertaining to any party to this litigation, the Court is to be notified by letter filed on NYSCEF with copies of any pleadings, copied to all counsel and parties, and the Court will then assess if a stay of this action is warranted.”

On July 16, 2025, Plaintiff's counsel filed a letter,¹¹ advising the Court that a proceeding had been commenced by Plaintiff as petitioner including Defendant as respondent pursuant to article 81 of the MHL in the New York Supreme Court, Westchester County under Index Number XXXXX/XXXX, (hereinafter “Guardianship Proceeding”), annexing a copy of the petition (hereinafter “Petition”).

The Petition seeks the appointment of an independent person to serve as Defendant's guardian for the management of her property and for her personal needs, asserting the following allegations as to the functional incapacity of Defendant:

“K.S.’s outright refusal to obtain stable housing, manage her finances (perform basic tasks such as making on-time and consistent payments for therapy costs, automobile expenses and cellphone service despite having sufficient funds), inability to maintain a properly functioning automobile and perceptions which are delusional and lack reality as addressed herein. K.S. stated to the court during a July 3, 2025 court appearance that one of the reasons she has elected not to obtain housing is that, “I'm sleeping in my car because my brother works for the CIA and I have information from the government indicating that my life could be in danger.” K.S. has also stated her firm belief that Al-Quada is looking to cause harm to her, our children and me through their use of sorcery and witchcraft. K.S.’s election to live in her car places her safety in jeopardy due to the current intense heat and possibility of asphyxiation as a result of her running the car to obtain air conditioning when the car is parked as well as placing her personal safety at issue by sleeping out in the open.

* * *

Owing to K.S.’s incapacity, namely the fact that, due to her continued mental illness, delusions and lack of touch with reality (see Attachment A), she has repeatedly failed to pay bills such as her cell phone bill (resulting in discontinuation of service), “max'd out” unpaid credit cards, and has had her car impounded after failing to pay approximately $6,000 in E-Z pass tolls, failed to timely pay the cost of car repairs leaving her car at the repair shop for months, failed to timely pay the cost of her therapy causing her therapy to pause until payment is made, even though she has sufficient income and assets for none of this to happen, and she delayed for more than one and one-half years after I had arranged for QDROs to transfer retirement funds to her in taking the necessary steps to take possession of the retirement accounts, she is incapable of managing her affairs and cannot adequately understand the nature and consequences of such inability.”

Among the requested powers to be granted to the guardian if appointed include the following:

“Legal capacity to sue on behalf of the incapacitated person, which would include the authority to hire counsel, to prosecute and defend civil proceedings, including administrative proceedings, and settle and compromise all matters related to such proceedings;

* * *

Retain an attorney***subject to prior court approval of fees, upon an affidavit of services submitted with the initial, annual or final reports.

* * *

Manage and direct all litigation regarding visitation with and custody of the incapacitated person's children.”

Legal Analysis

1. Court Authority to Grant a Stay

Pursuant to New York State Civil Practice Law and Rules (hereinafter “CPLR”) § 2201, “Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” “A court, pursuant to CPLR 2201, may sua sponte grant a stay of proceedings in an action that is pending before it” (Halloran v. Halloran, 161 AD2d 562 [2d Dept 1990]; see also Sternberg v. New York Water Service Corporation, 94 AD2d 723 [2d Dept 1983]). “It is well settled that a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources” (Zonghetti v. Jeromack, 150 AD2d 561 [2d Dept 1989]).

2. Propriety of Grant of a Stay Upon Commencement of Article 81 Proceeding

“The public policy of this State, and of this court, is one of rigorous protection of the rights of the mentally infirm (see CPLR 321, 1201)” (Vinokur v. Balzaretti, 62 AD2d 990 [2d Dept 1978]). “Courts cannot “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty to protect such litigants” (E.E. v. F.E., 64 Misc 3d 1236 [New York Sup. Ct. 2019] quoting Sengstack v. Sengstack, 4.NY.2d 502 [1958]).

Several vehicles are available to protect litigants who are impaired or incapacitated such as the appointment of a GAL and the appointment of a guardian, the differences of which the Court will now examine. Pursuant to CPLR §§ 1201 and 1202, upon application or sua sponte, a Court may appoint for a litigant a GAL if the Court determines that the litigant “is an adult incapable of adequately prosecuting or defending his rights.” The appointment of a GAL in the context of a matrimonial action has been determined appropriate to protect a litigant's interests “in light of the court's observation of defendant in an apparently chronic irrational and agitated state” (Anonymous v. Anonymous, 256 AD2d 90 [1st Dept 1998]).

The failure of a Court to appoint a GAL, upon presentment of evidence that a litigant was incapable of adequately prosecuting the action and no inquiry was held as to the possible need for the appointment of a GAL for the litigant, may constitute a reversible error (Cowell v. Dickoff, 60 AD3d 716 [2d Dept 2009]). “This places the burden upon a plaintiff who has notice that a defendant in his action is under mental disability, to bring that fact to the court's attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendant's interests” (Sarfaty v. Sarfaty, 83 AD2d 748 [4th Dept 1981]).

While the appointment of a GAL can be useful, the Courts have recognized that a GAL is not a decision maker as a guardian would be if appointed pursuant to Article 81 of the MHL:

“While a guardian ad litem can be appointed in a matrimonial case to assist a party suffering from a mental or emotional difficulty, a guardian ad litem can only serve as an advisor to the party. A guardian (appointed pursuant to Mental Hygiene Law Article 81), however, can be given any power that the individual himself or herself possesses. This could include the power to decide whether to negotiate a settlement or proceed to trial in the matrimonial action” (Christopher C. v. Bonnie C., 40 Misc 3d 859 [Suffolk Sup. Ct. 2013]).

Addressing the limitations of a GAL compared to that of a guardian, the Appellate Division Second Department has noted:

“The Supreme Court lacked the authority to authorize the plaintiff's guardian ad litem to settle her personal injury claim over her objection and to receive the proceeds of the settlement on her behalf. It is well settled that a guardian ad litem may be appointed by a court at any stage of an action in which an adult is incapable of adequately prosecuting or defending his or her rights (see, CPLR 1201, 1202; Hughes v. Physicians Hosp., 149 Misc 2d 661, 566 N.Y.S.2d 496). A guardian ad litem may be appointed to represent such a party even when no formal adjudication of incompetence has been made (see, Matter of Lugo, 8 AD2d 877, 187 N.Y.S.2d 59, affd. 7 NY2d 939, 197 N.Y.S.2d 740, 165 N.E.2d 581). However, a guardian ad litem is not authorized to apply to the court for approval of a proposed settlement of a party's claim (see, CPLR 1207) or to receive the proceeds of a **420 settlement pursuant to CPLR 1206 (see, Hughes v. Physicians Hosp., supra; Fales v. State of New *751 York, 108 Misc 2d 636, 438 N.Y.S.2d 449). Instead, the right to apply for court approval of a proposed settlement and to receive the settlement proceeds is granted to a guardian appointed in accordance with Mental Hygiene Law article 81 (see, CPLR 1206, 1207). Accordingly, we find it appropriate, under the circumstances of this case, to remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the plaintiff is incapacitated within the meaning of Mental Hygiene Law § 81.02(b) and whether the appointment of a guardian to manage her property and financial affairs is necessary. (Tudorov v. Collazo, 215 AD2d 750 [2d Dept 1995]).

Here, while this Court has appointed Defendant's GAL, having determined Defendant to be an adult litigant incapable of adequately prosecuting or defending her rights, the Court has now received notice of Plaintiff's commencement of the Guardianship Proceeding. This proceeding asserts that Defendant is an alleged incapacitated person in need of the appointment of a guardian for her personal and property management needs, which requests that the guardian have the authority necessary to manage and direct this post-judgment custody ligation on behalf of Defendant.

In evaluating if a stay is warranted under these circumstances, the Court takes into consideration the importance of ensuring that Defendant is afforded all necessary protections available under the law when proceeding in this litigation which involves the custody of her Children. Ultimately, the Court is obligated to utilize its inherent powers parens patriae to protect the best interests of the children in custody cases before it by utilizing all relevant available information to make a just determination (Weber v. Stony Brook Hosp., 95 AD2d 587, 467 N.Y.S.2d 685 [2d Dept. 1983]). Here, it would be inherently unjust to permit this custody litigation to proceed prior to ensuring that Defendant is able to do so without the additional assistance of a guardian. If she is determined to be an incapacitated person as the failure to grant a stay would likely result in Defendant not being able to fully participate in this litigation and thereby this Court could be deprived of the opportunity to receive all relevant information available from both parties to make a custody determination that reflects the best interests of the Children.

While the Court recognizes the desire of the parties to proceed promptly with this litigation, the Court has also recognized that guardianship proceedings commenced under the MHL are by statute required to proceed expeditiously as the order to show cause commencing such proceeding must be heard “no more than twenty-eight days from the date of the signing of the order to show cause” and “The date of the hearing may be adjourned only for good cause shown.”¹² Accordingly, while this action may be delayed, such a delay will be brief and such an inconvenience is greatly outweighed by the need to both protect Defendant's rights and to ensure a just outcome reflecting the best interests of the Children.

Accordingly, the Court determines that while no application for a stay has been made, it must grant a stay of this post-judgment matrimonial litigation sua sponte in the interests of justice and to avoid the potential waste of judicial resources as the possible determination of Defendant to be an incapacitated person in the Guardianship Proceeding would result in any actions taken in this litigation without a stay to likely be vacated and relitigated.

It is hereby ORDERED that:

1. This post-judgment matrimonial litigation, including that pertaining to Motion Sequence No. 5, is stayed, in its entirety.

2. Within five days of entry and/or filing, Plaintiff's counsel shall provide this Court pertaining to Plaintiff's Guardianship Proceeding, and within five days of entry, the following:

a. Decision and Order After Hearing;

b. Findings of Fact, Conclusions of Law and Judgment; and

c. Oath and Designation of Guardian;

3. A status conference shall be held on September 30, 2025, at 9:00 a.m., wherein all parties, counsel and Defendant's GAL shall appear in person.

4. Unless modified herein all prior judgments, decisions and orders entered in this action shall remain in effect.

FOOTNOTES

1.   See, NYSCEF Doc. No. 1.

2.   See, NYSCEF Doc. No. 161.

3.   See, NYSCEF Doc. No. 148.

4.   See, NYSCEF Doc. No. 203.

5.   See, NYSCEF Doc. No. 204.

6.   See, NYSCEF Doc. No. 210.

7.   See, NYSCEF Doc. No. 211.

8.   See, NYSCEF Doc. No. 212.

9.   See, NYSCEF Doc. No. 213.

10.   See, NYSCEF Doc. No. 214.

11.   See, NYSCEF Doc. No. 245.

12.   See, MHL § 81.07(b)(1).

James L. Hyer, J.