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Supreme Court, Appellate Division, Second Department, New York.

Anastasia MITSINICOS, respondent, v. NEW ROCHELLE NURSING HOME, appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. Gerard J. Marulli, New York, N.Y. (Richard A. Hines and Neil B. Ptashnik of counsel), for appellant. Corpina, Piergrossi, Overzat & Klar, LLP, New York, N.Y. (Candice A. Pluchino of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the defendant appeals from so much of an order of the Supreme Court, Westchester County (Fredman, J.), entered January 28, 1998, as granted that branch of the plaintiff's motion which was for leave to reargue (a) a prior motion of the defendant, inter alia, to dismiss the complaint on the ground that the plaintiff lacked capacity to sue, and (b) a cross motion of the plaintiff for the appointment of a guardian ad litem for the purposes of the action, which were determined by order of the same court entered September 23, 1997, and upon reargument, inter alia, vacated the dismissal of the action, denied the motion, and granted the cross motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court did not improvidently exercise its discretion under CPLR 2221 when, upon granting reargument to the plaintiff, it vacated its prior dismissal of the complaint under CPLR 3211(a)(3).   The record supports the court's finding that it had “misapprehended” certain facts, including, inter alia, that the mental disability attested to in the affidavit of the plaintiff's psychiatrist, which was submitted in support of her original application for a guardian ad litem, concerned only plaintiff's present and future incompetence to maintain the action, and did not date back to the commencement of the action.   The court had dismissed the plaintiff's action based upon a mistake of fact, and it properly vacated the dismissal on the plaintiff's motion for reargument (see, e.g., William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27, 588 N.Y.S.2d 8;  Schneider v. Solowey, 141 A.D.2d 813, 529 N.Y.S.2d 1017).

 We also conclude that the defendant did not establish by the requisite clear and convincing evidence that the plaintiff had been incompetent when the instant lawsuit was initiated.   The hospital and nursing home records relied upon by the defendant suggest that, during the relevant period, the plaintiff was often confused but sometimes was not (see, e.g., Matter of Maher, 207 A.D.2d 133, 621 N.Y.S.2d 617;  Matter of Obermeier, 150 A.D.2d 863, 540 N.Y.S.2d 613;  Matter of Bobst, 165 Misc.2d 776, 630 N.Y.S.2d 228, affd. 234 A.D.2d 7, 651 N.Y.S.2d 26;  Mental Hygiene Law, art. 81;  see also, Feiden v. Feiden, 151 A.D.2d 889, 542 N.Y.S.2d 860;  Matter of Waxman, 96 A.D.2d 906, 466 N.Y.S.2d 85).   In the absence of a judicial declaration of incompetence made in accordance with the statutory processes provided therefor, a person suffering from acknowledged mental defects may sue or be sued in his or her own name (see, e.g., Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 151 N.E.2d 887;  Keown v. Wright, 89 A.D.2d 932, 454 N.Y.S.2d 49;  Rau v. Tannenbaum, 85 A.D.2d 522, 444 N.Y.S.2d 635).


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