Upon the foregoing papers, the motion by order to show cause by plaintiffs for an order pursuant to C.P.L.R. §1202, appointing Dolores L. as guardian ad litem of the infant plaintiffs, [*2]E.S. and E.L., pursuant to C.P.L.R. §1201, amending the caption of the above-entitled matter to reflect that the infant plaintiffs, E.S. and E.L. appear by their Guardian Ad Litem and removing Marilu S. as representative plaintiff for the infant plaintiffs and staying all discovery in this matter until such time as the provisions of the order to be entered herein are fully carried out, is denied in its entirety.

The cause of action is for the lead poisoning of the infant plaintiffs which is alleged to have occurred while the infant plaintiffs resided at the various defendants' premises located at 212 St. Ann's Avenue, 213 St. Ann's Avenue and 216 St. Ann's Avenue in Bronx County.

Plaintiffs seek to have the infant plaintiffs' father serve as guardian ad litem and have the infant plaintiffs' mother, Marilu S., removed as representative plaintiff for the infant plaintiffs. Plaintiffs' counsel asserts that his law firm was retained by Ms. S. on December 23, 1999 to pursue a lead poisoning case involving the infant plaintiffs. Ms. S., returned to Mexico with the infant plaintiffs in December of 2004 to care for her sick mother. Plaintiffs' counsel contacted Ms. S. in Mexico and she informed him that she would be returning to New York with the infant plaintiffs. However, in June of 2006, plaintiffs' counsel spoke to Ms. S.'s sister and was informed that Ms. S. had been severely injured in an automobile accident in Mexico, she lost the use of both her legs and was in a wheelchair.

Plaintiffs' counsel asserts that he previously applied to the court to have Dolores L. substituted as representative plaintiff for the infant plaintiffs but he withdrew the motion so that the defendants could take Dolores L.'s deposition to determine if they would consent to the substitution. The deposition has failed to take place and the parties blame each other for the fact that the deposition has not yet been held. Plaintiffs' counsel alleges that plaintiff Marilu S. and the infant plaintiff, E.L., who is a citizen of Mexico, cannot return to the United States in time for the depositions that were scheduled for July 23, 2007. Moreover, counsel alleges that it is "doubtful" that Marilu S. will ever return to the United States because she was here illegally for many years and she is still an invalid. Plaintiffs' counsel argues that the infant plaintiffs' father can protect the interests of the infant plaintiffs so that the case is not subject to dismissal. Plaintiffs cite to C.P.L.R. §1201 and §1202(a)(2) in support of their motion and refer to the affidavit of Dolores L. in support of their motion.

Defendant Kenran Realty, Inc. (hereinafter "Kenran"), opposes the motion on several grounds. First Kenran asserts that since Dolores L. is not and has never been the custodial parent of the infant plaintiffs, his substitution is prohibited under C.P.L.R. §1201. Kenran argues that Mr. L. has no standing to be substituted as guardian ad litem as he has neither legal nor physical custody of the infant plaintiffs. Moreover, Kenran points out that Mr. L.'s name does not appear on the birth certificate of the infant plaintiff, E.S., who was born in the United States. Kenran refers to the affidavit of Dolores L. which, according to Kenran, demonstrates that Mr. L. did not reside with Marilu S. and the infant plaintiffs at all. A child support order was sought by Marilu S. and Kenran asserts that no evidence has been submitted that Mr. L. has ever made any child support payments in compliance with that order. [*3]

Kenran further asserts that plaintiffs' motion is "unseemly" because it seeks to have Marilu S. removed as the representative plaintiff in this action, an impairment of her rights as the custodial parent, without any indication that she, the client, has consented to said removal. Kenran refers to the medical report prepared on December 1, 2005, approximately fifteen (15) days after Marilu S. was admitted to the hospital after her accident in Mexico and said report reveals that she suffered multiple fractures and she was advised not to resume walking until additional x-rays were taken. Kenran also argues that the motion contemplates that Marilu S. will still maintain her individual action and if she is able to maintain her own action, she can serve as the representative plaintiff for the infants. Finally Kenran argues that plaintiffs' counsel has delayed discovery in this action which has been unduly prejudicial to the defendants herein.

Defendants 212 St. Ann's Realty Corp. and Carmelo De Jesus (hereinafter collectively referred to as "212 St. Ann's") oppose the motion on the ground that it is defective on its face for failure to submit an affidavit from Marilu S. consenting to the change in representative plaintiff and for failure to submit evidence records in admissible form demonstrating that a change in guardians is necessary to protect the infant plaintiffs' rights. 212 St. Ann's contends that without the proper affidavits it is unknown whether or not Marilu S. consents to be removed as representative plaintiff, whether or not she knows that plaintiff's counsel is proposing that Dolores L. be substituted as the infants' representative and whether or not she consents to same. 212 St. Ann's contends that without the proper documentation, it is unknown what the true state of Marilu S.'s health is and whether or not she can travel. 212 St. Ann's asserts that plaintiffs' counsel has failed to demonstrate that there is any physical or legal impediment to Marilu S.'s temporary travel to the United States.

Defendants 212 St. Ann's also submitted a supplemental affirmation opposing plaintiffs' motion. In said supplemental affirmation, 212 St. Ann's refers to the affidavit of Dolores L. wherein he states that he resided with the plaintiffs until he and Marilu S. separated in 2003. 212 St. Ann's further refers to the child support order issued in Family Court which contradicts Mr. L.'s statements. In the child support order dated October 4, 2000, it states that at the time of the order, Mr. L. resided at 402 E. 132 Street, No.14, Bronx, New York. However, according to plaintiffs' bill of particulars, Marilu S. and the infant plaintiffs lived at 213 St. Ann's Avenue in Bronx County from June 2000 to December 2000. 212 St. Ann's asserts that Mr. L. has offered no leases or other records to support his contention that he lived continuously with the plaintiffs from 1996 to 2003.

C.P.L.R. §1201 states, "Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property or...by a parent having legal custody..." C.P.L.R. §1202(a)(2) states, "The court in 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 a relative..."

This court finds that plaintiffs have not submitted the proper proof necessary to demonstrate that Marilu S. should be removed as representative plaintiff for the infant plaintiffs so that Dolores L. can be appointed as guardian ad litem of the infant plaintiffs. Marilu S. did [*4]not submit an affidavit consenting to be removed as the representative plaintiff of her children and consenting to have Mr. L. appointed as the representative plaintiff. There was no proof submitted to demonstrate that Marilu S. cannot return to the United States to pursue this action. Moreover, Marilu S. has an individual action against the defendants and there is no indication that she will not maintain that action. Therefore, if she is continuing with her individual action, plaintiffs have not demonstrated why she cannot continue to represent the infant plaintiffs.

Furthermore, plaintiffs did not submit sufficient evidence to prove that Dolores L. would be a proper representative for the infant plaintiffs. There was no proof submitted that he has legal custody of the infant plaintiffs. The affidavit submitted by Mr. L. wherein he indicated that he lived with the plaintiffs until 2003 is contradicted by the Family Court child support order and plaintiffs' own bill of particulars.

Accordingly, plaintiffs' motion is denied in its entirety.

Movant is directed to serve a copy of this order with notice of entry upon the defendant and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated August 21, 2007

J.S.C.