john doe

This opinion is uncorrected and subject to revision in the Official Reports. This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present: HONORABLE PATRICIA P. SATTERFIELD IAS Part 19
Justice

______________________________
IN THE MATTER OF THE PETITION
FOR APPOINTMENT OF A GUARDIAN AD Index Number: 7676/00
LITEM FOR AJOHN DOE@ (AIP). Motion Date: 5/3/00
______________________________

The following papers numbered 1 to 5 read on the petition and motion, by Order to Show Cause, made by the attorney for AJOHN DOE@(Apetitioner@), for an order appointing a guardian ad litem.

Papers
Numbered

Order to Show Cause - Affidavits - Exhibits.... 1 - 4
Memorandum of Law.............................. 5
Hearing on the Record.......................... 6

Upon the foregoing papers, and after a hearing on the record, it is ordered that the motion is denied and the petition is dismissed.

Petitioner is the attorney for AJOHN DOE@, a respondent in an arbitration proceeding before the New York Stock Exchange (ANYSE@). In this case of apparent first impression, petitioner asks this court to appoint a guardian ad litem for AJOHN DOE@ in conjunction with the arbitration, whom petitioner claims is of unsound mind and incapable of the management of his affairs. The threshold question is whether this Court has jurisdiction to grant the relief requested.(Note 1)

Petitioner contends that the Supreme Court, as a court of general jurisdiction, has the power to appoint a guardian ad litem over a respondent in a proceeding before a contractual forum, pursuant to Rule 1202 of the CPLR. Article VI, ' 7 of the N.Y. Constitution establishes the Supreme Court as a court of "general original jurisdiction in law and equity" (N.Y. Const., art. VI, ' 7[a] ). Under this grant of authority, the Supreme Court "is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed@(Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 166), and Ato that extent its powers are >unlimited and unqualified=. Kagen v. Kagen, 21 N.Y.2d 532, 537.@ Sohn v. Calderon,78 N.Y.2d 755,766; see, also, Fry v. Village of Tarrytown, 89 N.Y.2d 714. Such proscription has been found as it relates to disputes that resolvable in the first instance by administrative agencies of the State of New York. As was stated in Sohn, supra,78 N.Y.2d at 766-767:

However, it has never been suggested that every claim or dispute arising under a legislatively created scheme may be brought to the Supreme Court for original adjudication. To the contrary, in Loretto v. Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143, 152-153, 459 N.Y.S.2d 743, 446 N.E.2d 428, this Court observed that concurrent original jurisdiction is not necessarily conferred on the Supreme Court when the Legislature provides for the adjudication of regulatory disputes by an administrative agency within the executive branch, as distinguished from a court within the judicial branch. Indeed, we stated in Loretto that there is nothing in article VI, ' 7(b) or the relevant case law "to suggest that administrative agencies cannot be given a first instance adjudicatory function, subject to judicial review" (58 N.Y.2d, at 153, 459 N.Y.S.2d 743, 446 N.E.2d 428, supra; cf., Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 362-363, 514 N.Y.S.2d 689, 507 N.E.2d 282 [Supreme Court does not have jurisdiction concurrent with that of Department of Environmental Conservation with respect to agency's legislative licensing and regulatory functions] ).

Accordingly, the constitutionally protected jurisdiction of the Supreme Court does not prohibit the Legislature from conferring exclusive original jurisdiction upon an agency in connection with the administration of and resolutions of disputes within its primary jurisdiction.

Such an analysis, which specifically addressed state administrative agencies, is even more compelling with respect to private sector arbitration proceedings, such as those at issue. Contrary to petitioner's assertion, the original and general jurisdiction of the Supreme Court does not vest in this Court the inherent authority to appoint a guardian ad litem over a respondent in a proceeding before a contractual forum.

Nor, as argued, does Rule 1202 of the CPLR invest the Supreme Court with such authority. Section 101 of the CPLR expressly defines and limits its applicability, providing that it Ashall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.@ See, U. S. Power Squadrons v. State Human Rights Appeal Bd., 84 A.D.2d 318, appeal granted, Rainnie v. Community Memorial Hospital, 57 N.Y.2d 607, 441 N.E.2d 1119, affirmed, 59 N.Y.2d 401, reargument dismissed, 60 N.Y.2d 702, reargument dismissed, 60 N.Y.2d 682, standing for the proposition that CPLR is applicable to "civil judicial proceedings" and not to administrative proceedings.

Rule 1202 authorizes the court Ain which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of. . . 2. a relative, friend (Note 2)or a guardian, committee of the property, or conservator;. . .@ It is well settled, pursuant to this Rule, 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, even when no formal adjudication of incompetence has been made. See, Tudorov v. Collazo, 215 A.D.2d 750; Matter of Lugo, 8 A.D.2d 877,affd., 7 N.Y.2d 939. The clear language of this statutory provisions presupposes that an action is underway in the court in which the appointment of a guardian ad litem is being sought.

Petitioner, however, argues to the contrary, contending that the statutory provision, in its utilization of the language Aan action is triable,@ requires only that the court have jurisdic-tion over the parties and jurisdiction over the controversy, not that an action be pending in that court. Petitioner's statutory construction arguments are to no avail. It is well-established that where, as here, "the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used." Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208[citations omitted]; Doctors Council v. New York City Employees' Retirement Sys., 71 N.Y.2d 669, 674-675; Bender v. Jamaica Hosp., 40 N.Y.2d 560, 562["no rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal"]; see also, Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 103, n. 1, 667 N.Y.S.2d 327, 689 N.E.2d 1373 [departure from legislative text not recommended where the language is unambiguous and the result is not absurd]. Reading section 101 of the CPLR and Rule 1202 together, the statutory language is clear and unambiguous: an action must be pending. As no action or proceeding is before this Court, it lacks the statutory basis to appoint a guardian ad litem. Moreover, contrary to petitioner's assertion, this Court neither has jurisdiction over all the parties to the arbitration nor primary jurisdiction over the controversy that is the subject of the arbitration.

The claimants in the Arbitration pending before the NYSE seek compensatory damages in excess of $1 million and punitive damages of $5 million against AJOHN DOE@, claiming that he, as their stock broker, made unauthorized transactions, churned the account and misrepresented the status of the account. This controversy, in the first instance, clearly is solely within the exclusive jurisdiction of the Arbitration Panel to determine. The hearing before the arbitration panel began over a year and a half ago, and further hearings, at which time AJOHN DOE@ is to put forth his case, are scheduled for several days in May, June and July. The testimony at the hearing held on this petition, as well as the exhibits submitted in support of the application, establish that AJOHN DOE@ suffers from Bipolar Mood Disorder. His treating psychiatrist testified and opined that Mr. ADoe@ is completely unable to participate in any legal process or in any meaningful productive activity, but is capable of managing his affairs and does not need a guardian within the meaning of the Mental Hygiene Law. Petitioner, Mr. ADoe@'s attorney in the arbitration proceedings who is appearing under protest, seeks the appointment of a guardian ad litem to make decisions on Mr. ADoe@'s behalf and to assist in his defense.(Note 3) Petitioner is placed in the unenviable position of being forced to defend a client with whom he can communicate only through either his client's psychiatrist or wife. The situation presented clearly demonstrates the need for some form of remedial action to insure the protection of a person incapable of adequately prosecuting or defending his or her rights in a nonjudicial proceeding, such as that at issue. This Court, however, is constrained, and lacks jurisdiction to grant the relief requested.

That branch of the motion requesting that the records of this proceeding be sealed is granted. The motion is denied in every other respect, and the petition hereby is dismissed.

DATED: May 8, 2000 J.S.C.

Notes

1. Apparently, the Arbitration Panel lacks the authority, under the governing rules and regulations of the NYSE to appoint a guardian ad litem; the federal Court found that it lacked subject matter jurisdiction to appoint a guardian ad litem; a prior petition filed in the Supreme Court, New York County, was withdrawn, without prejudice to refiling in Queens County,

2. For the purposes of this application, this Court treats petitioner as a "friend."

3. The Arbitration Panel directed Mr. "Doe" to submit to an independent evaluation by a psychiatrist chosen by the parties, which he did.