APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by tenant-appellant to stay all proceedings pending determination of the appeal and for poor person relief is held in abeyance, the temporary stay contained in the order to show cause signed by Justice Molia on April 4, 2008 is continued pending the ultimate determination of this motion and the matter is remitted to the Peekskill City Court, Westchester County for a hearing to be held within 30 days of the date of this order to determine whether tenant-appellant is an adult incapable of adequately defending her rights (CPLR 1201) and, if so, for the appointment of a guardian ad litem pursuant to CPLR 1202. The court shall cause its order and decision to be filed with the clerk of this court with all deliberate speed.

On the court's own motion, appeal by tenant-appellant is held in abeyance pending the filing by the lower court with the clerk of this court of its order and decision following said hearing.

Courts have a duty to protect incompetent parties who are incapable of protecting their own interests (see Sengstack v Sengstack, 4 NY2d 502, 509 [1958]; Shad v Shad, 167 AD2d 532, 533 [1990]). The fact that tenant was represented by counsel in the proceedings is of no consequence, in that public policy requires the "rigorous protection of the rights of the mentally infirm" (Vinokur v Balzaretti, 62 AD2d 990, 990 [1978]). Accordingly, where there is a question of fact as to whether a guardian ad litem should be appointed, a hearing must be held (see CPLR 1201; Shad v Shad, 167 AD2d at 533; Kushner v Mollin, 144 AD2d 649 [1988]; Vinokur v Balzaretti, 62 AD2d 990, supra).