18 TINA HAYES v. MBM ASSOCIATES LP (2022)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion:

Papers NYSCEF Document No.

Motion Sequence No. 2

Notice of Motion, Affirmation in Support 25 - 35

Opposition 38 - 40

Upon review of the foregoing papers, defendants' motion to appoint a guardian ad litem for the infant plaintiff to evaluate defendants' $50,000 offer of settlement is denied.

Based on defendants' papers, the then 2-year-old infant plaintiff allegedly sustained injuries when a metal gate fell on her. In sum, defense counsel initially offered to settle the matter for $35,000 and thereafter for $50,000. Defense counsel contends that after he conveyed the $35,000 offer, plaintiff's counsel advised him that Tina Hayes, the mother and natural guardian of infant plaintiff, accepted the offer. However, thereafter plaintiff's counsel advised that Ms. Hayes rejected the offer and discharged counsel. Defendants thereafter conveyed an offer of $50,000 to plaintiff's new counsel. Movants contend that plaintiff's second counsel advised him that Ms. Hayes accepted the offer. However, thereafter plaintiff's counsel informed movants that Ms. Hayes had rejected the offer and that counsel no longer represented plaintiff.

In opposition to the motion, plaintiff's new counsel states that she has been practicing law since 1996, engaging exclusively in catastrophic injury cases, and that in her professional opinion defendants' offer of settlement falls substantially short of the amount to which plaintiff is entitled. Plaintiff's counsel further argues that Ms. Hayes has the unqualified right to terminate the attorney client relationship at any time (See In re Thelen LLP, 24 NY3d 16 [2014]) and that her act of discharging prior counsels does not render her incompetent to act as infant plaintiff's natural guardian. Ms. Hayes has never been declared incompetent nor has her custody of the infant plaintiff ever been nullified.

Plaintiff's counsel further contends that defense counsel is representing to act in the best interest of the infant plaintiff by attempting to force a nominal settlement on an infant without the consent of the infant's mother and natural guardian.

The Court finds that movants failed to establish a factual or legal basis for the appointment of a guardian ad litem to evaluate the settlement offer of $35,000 and $50,000. Plaintiff is represented by an experienced attorney who agrees with infant plaintiff's natural guardian that the offers conveyed are diametrically opposed to the infant plaintiff's best interests. Defense counsel has provided no reason to overrule plaintiff counsel's opinion rendered pursuant to decades of experience in such cases.

Accordingly, it is hereby

ORDERED, that Defendants' motion to appoint a guardian ad litem is denied.

This constitutes the Order of the Court.

Dated: October 19, 2022

E N T E R :

_____________________________

HON. ODESSA KENNEDY

Odessa Kennedy, J.