On November 28, 2008, the New York City Housing Authority (NYCHA) commenced this licensee holdover proceeding against respondent, John Richardson, concerning 70 Amsterdam Avenue, Apartment 10CD, an eight-room apartment in New York County. From 1957 to 1978, respondent lived in the subject apartment with his parents and brother, Robert Richardson. Respondent's mother was the original record tenant. In 1998, respondent's parents permanently vacated the apartment, and NYCHA granted Remaining Family Member status to Robert Richardson, who then became the sole record tenant. Respondent returned to the subject apartment in 1994 but did not obtain NYCHA's written permission to occupy the premises. Respondent and Robert Richardson lived in the subject apartment together until 2004, when NYCHA transferred Robert Richardson to a one-bedroom apartment in NYCHA's Amsterdam Houses. According to NYCHA, Robert Richardson's new apartment is more appropriate for a single individual, especially in light of his history of psychiatric problems, than the subject eight-room apartment, which is intended for families.

Respondent remained in the subject apartment after Robert Richardson transferred to the new apartment. In 2005, Richardson submitted a Remaining Family Member grievance request to the NYCHA Borough Office. Dismissing the grievance request, the Borough Office found that respondent did not make an appropriate showing that he qualified as a Remaining Family Member under NYCHA's regulations. NYCHA then commenced a licensee holdover proceeding in Housing Court under L & T Index No. 14159/05. During the pendancy of that case, respondent declined NYCHA's offer to transfer Robert Richardson to a two-bedroom apartment and to add respondent to the family composition. (Affidavit of Curran at ¶ 11.) NYCHA contended then, as it contends now, that respondent is not entitled to his own lease. As NYCHA puts it, if occupants [*2]who remained in the original apartment after the record tenant transferred "were entitled to a lease, two leaseholds would be created where only one had existed previously." (Affidavit of Curran at ¶ 10.) A second case between NYCHA and respondent regarding the subject apartment under L & T Index No. 19485/2006 was dismissed for failure to prosecute after a long history of adjournments.

The instant matter is NYCHA's third attempt to evict respondent from the subject apartment. Respondent failed to appear in court on December 19, 2008. The court then referred respondent to Adult Protective Services (APS) and appointed Mr. Robert Levis as respondent's guardian ad litem (GAL). NYCHA moved for summary judgment on July 2, 2009. On July 21, 2009, respondent was present in court along with his GAL. Although neither respondent nor his GAL submitted written opposition, the court afforded the parties the opportunity to be heard and discuss the merits of their positions, and both did so. Respondent failed to present any fact that would preclude summary judgment when the court heard from him and his GAL orally.

The court granted petitioner's motion for summary judgment. In a short written opinion dated July 21, 2009, the court found that Robert Richardson was the record tenant of the subject premises and that when he transferred to another apartment, respondent no longer had any tenancy rights. The court issued a final judgment for petitioner and stayed execution of the warrant of eviction through December 31, 2009.

On December 31, 2009, respondent, now represented by counsel, filed an order to show cause to vacate what respondent calls the default of July 21, 2009, and to further stay the eviction. Respondent argues that his GAL was ineffective and requests that this court's July 2009 order be vacated under CPLR 5015 (a) (1) because, he contends, his GAL failed to advise him to submit written opposition to petitioner's summary-judgment motion. Respondent also requests that the court appoint a new GAL.

Whether Granting Summary Judgment Was Appropriate.

As the Court of Appeals has explained, "[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law." (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) The court's duty "is not to resolve issues of fact, but merely to determine if such issues exist." (Matter of Atiram, 25 Misc 3d 1241 [A], 2009 NY Slip Op 52534 [U], *1 [Sur Ct, Kings County Dec. 16, 2009].) To prevail under CPLR 3212, the moving party must demonstrate that summary judgment is appropriate because only legal questions exist. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) To defeat a motion for summary judgment, the opposing party must submit admissible evidence demonstrating the existence of triable issues of fact. (Id.) Submitting "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact. (Id.) When no opposing evidence is submitted, a court must still deny summary judgment if the moving party does not meet its burden. (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 277 n * [1st Dept 2006].) [*3]

NYCHA's motion for summary judgment demonstrated that respondent did not qualify for Remaining Family Member status under NYCHA's Management Manual. (See NYCHA Management Manual, chap IV.) Although respondent did not submit written opposition to petitioner's motion, written opposition was not required to consider the motion. This court had the opportunity to discuss with respondent the nature of summary judgment and its consequences because respondent and his GAL were present at the July 2009 hearing and had a full and fair opportunity to raise any triable issues of fact demonstrating that respondent might qualify as a remaining family member or at least to raise an issue that might have suggested to the court that respondent file written opposition or to testify instead of filing written opposition. Respondent failed to present any such evidence. Thus, the grant of summary judgment was proper.

Whether the Grant of Summary Judgment Was Entered on Default.

Respondent argues that the order of summary judgment be considered an excusable default judgment. Respondent claims that his GAL did not inform him about the summary-judgment motion, did not give him a copy of the motion, did not ask that the case be adjourned, and did not assist respondent to prepare a written answer to oppose petitioner's summary-judgment motion. (Affidavit of Respondent ¶ 6.) Respondent claims that due to his GAL, "the Court decided the petitioner's motion for summary judgment on the basis of a wholly one-sided record." (Affidavit of Lawrence ¶ 12.) Petitioner argues that summary judgment was not entered on default. According to petitioner, all parties "were present in court on July 21, 2009 and were afforded an opportunity to be heard and to present opposition to the Petitioner's motion." (Affidavit of Curran ¶ 4.)

The Appellate Terms for the First and Second Departments have found that a grant of summary judgment may be considered a default judgment if the opposing party fails to submit written opposition. (319 W. 48th St. Realty Corp. v Almeida, 21 Misc 3d 129 [A], 2008 NY Slip Op 51993 [U] [App Term, 1st Dept Oct. 7, 2008] ["Respondent-appellants' failure to submit papers in opposition to petitioner's motion to strike their answers constituted, as Civil Court properly found, a default on the motion."].) Thus, a "[f]ailure to interpose written opposition to a motion renders the resulting order or judgment" — a default judgment that may not be appealed as of right. (Brown v Chase, 3 Misc 3d 129 [A], 2004 NY Slip Op 50371 [U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists Apr. 29, 2004].) The defaulting party's only remedy "is to move to vacate the judgment." (Fox v T.B.S.D. Inc., 278 AD2d 612, 613 [3d Dept 2000].) Even if the opposing party appears in court and present oral defenses and opposition, oral argument is insufficient. (Careplus Medical Supply Inc. v. Travelers Home, Marine Ins. Co., 11 Misc 3d 135 [A], 2006 NY Slip Op 50479 [U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists Mar. 27, 2006].)

Although pro se litigants have the right to submit opposition papers in Housing Court, if they appear and answer orally but do not submit papers they will not lose the case or the motion on default. (Cf. RPAPL 743 [allowing respondents to answer petitions "orally or in writing" in summary proceedings].) If the rule were otherwise, so many pro se tenants would be evicted that [*4]New York City would become a vast homeless shelter. In Housing Court, approximately 90 percent of tenant-respondents are pro se litigants. It would be an unreasonable burden to require litigants always to submit written opposition to motions to preserve their defenses for appeal. If that requirement exists, then nearly every landlord's motion in Housing Court would be granted on default. Neither party cited, nor could this court find, any case expressly discussing whether an unrepresented litigant's failure to file written opposition must lead to a default. Further, none of the cases this court found discussed whether the Appellate Term decisions likening the failure to submit written opposition to default judgments apply to pro se litigants in Housing Court. All the cases either involved represented parties or did not state whether the litigants were pro se or represented. Whether the failure to submit written opposition in a summary proceeding qualifies as a default, even when pro se parties answer orally, is an issue for the Appellate Term and for another day. But despite the hundreds, if not thousands, of appeals in the Appellate Terms for the First and Second Departments in which pro se litigants doubtlessly opposed Housing Court motions only orally, not once has the Appellate Term, the Appellate Division, or the Court of Appeals found that a decision, order, or judgment was entered on default. As far as this court is concerned, a pro se litigant's oral answer is sufficient for a Housing Court judge to grant or deny summary judgment on the merits. Respondent was a pro se litigant, regardless of the appointment of his GAL. Respondent answered orally at the July 2009 hearing, and the grant of summary-judgment should not be considered a default judgment.

Whether Respondent Provided a Reasonable Excuse for Failure to Submit Written Opposition, Assuming that the July 2009 Order was Entered on Default.

Assuming that respondent's failure to submit written opposition to petitioner's summary judgment motion despite his oral answer qualifies as a default judgment, it is necessary to consider whether respondent's circumstances satisfy the criteria of an excusable default. To prevail under CPLR 5015 (a) (1), the moving party must provide a reasonable excuse for failure to appear in court and demonstrate a meritorious claim. (E.g. Navarro v A. Trenkman Estate, Inc., 279 AD2d 257, 257 [1st Dept 2001].) The "[a]ssessment of the sufficiency of the proffered excuse and the adequacy of merit rests within the sound discretion of the court." (Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]; accord Mondrone v. Lakeview Auto Sales & Serv., 170 AD2d 586, 586 [2d Dept 1991] [explaining that the court's sound discretion in setting aside a default "will generally not be disturbed if there is support in the record therefor"].) As discussed below, the alleged ineffectiveness of respondent's GAL is not a reasonable excuse in this case, and respondent fails adequately to establish the merit of his claim that he should qualify as a remaining family member. Thus, respondent's motion to vacate the July 2009 judgment is denied

A party arguing that a default is excusable must provide an excuse for the failure to appear in court or the failure to submit written opposition. (John v City of New York, 260 AD2d 187, 187 [1st Dept 1999].) For example, if the parties "failed to appear at the trial because a court clerk misinformed them as to the trial date," that misinformation is a reasonable excuse. (Beneficial Finance Co. of New York, Inc. v Kramer, 48 AD2d 822, 822 [2d Dept 1975].) [*5]Similarly, a satisfactory excuse arises when a "tenant's failure to oppose the landlord's summary judgment motion [is] due to . . . the tenant's (timely) filing of his opposition papers in the wrong location in the courthouse" and the tenant moved to vacate the default within weeks. (J.H.B. LPP. v Kirby, 5 Misc 3d 138 [A], 2004 NY Slip Op 51618 [U], *2 [App Term, 1st Dept Dec. 15, 2004].) By contrast, a "conclusory, undetailed and uncorroborated claim of law office failure" is inadequate to explain the failure to submit opposition papers, even if it may explain the failure to appear in court. (Acupuncture Healthcare Plaza, P.C. v Zurich Ins. Co., 22 Misc 3d 126 [A], 2008 NY Slip Op 52585 [U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists Dec. 31, 2008].) In the present case, respondent appeared in court pro se with his GAL when petitioner's summary-judgment motion was scheduled to be heard, but respondent argues that his GAL's supposed ineffectiveness in not preparing written opposition papers provides a reasonable excuse. This court disagrees.

A GAL's role may be satisfied by "[a]ny adult person who is capable of protecting the interests of the ward and has no conflict of interest." (Siegal, NY Prac § 198, at 1 [4th ed].) GALs need not be attorneys to discharge their duties successfully. (Id., citing Bolsinger v Bolsinger, 144 AD2d 320, 320-21 [2d Dept 1988].) Most Civil Court GALs are not attorneys. A GAL's duties focus on looking out for the ward's best interests. GALs protect their wards, and act as officers of the court, not by legally advising the ward or preparing legal documents for the ward, but rather by acting as a liaison with the ward's best interests in mind. A GAL is "is not a decision-making position; it is an appointment of assistance. The GAL provides invaluable service to the ward, such as applying for public assistance or arranging clean-ups . . . ." (1234 Broadway LLC v Lin, 25 Misc 3d 476, 495 [Hous Part, Civil Ct, NY County 2009].) Even when a GAL is an attorney, a stipulation involving a GAL who is an attorney is not treated as a two-attorney stipulation that the court will sign pro forma. Instead, "[a] Judge should insure that stipulations recommended by GALs, who are also admitted attorneys[,] are reviewed by the Judge in the same manner as stipulations recommended by non-attorney GALs." (Civ Ct of City of NY, Advisory Notice: Settlement of GAL Cases [eff Mar. 8, 2007], available at http://www.nycourts. gov/courts/nyc/civil/directives /AN/gal.pdf [accessed Mar. 17, 2010].)

Respondent's GAL is not an attorney and would not be charged with preparing respondent's legal defense as an attorney, even if he were one. Although GALs are trained and appointed by the New York City Civil Court and paid by APS, GALs are not legal counsel. Respondent's GAL, moreover, has a rich history as a dedicated, competent GAL. He was aware of his obligations to his ward and the court, and he discharged his responsibilities in this proceeding. Respondent's allegations that his GAL was ineffective by failing to inform respondent that he needed to serve and file written opposition or by not assisting respondent in preparing opposition is unfounded, even if true.

Under CPLR Article 12, Housing Court judges are authorized in their discretion to appoint a GAL to protect a ward's interests for "the specific proceeding." (Kings 28 Assocs. v Raff, 167 Misc 2d 351, 354 [Hous Part, Civil Ct, Kings County 1995].) Appointing a GAL is justified if a preponderance of the evidence shows that the potential ward is incapable of [*6]protecting the ward's rights. (New York Life Ins. Co. v V.K., 184 Misc 2d 727, 734 [Hous Part, Civil Ct, NY County 1999].) The "incapacity might be cultural, linguistic, physical, intellectual, or psychological." (1234 Broadway, 25 Misc 3d at 484.) Appointing a GAL for a ward does not suggest that the ward "is incompetent or even incapable of understanding the nature and consequences" of court proceedings. (Kings 28 Assocs., 167 Misc 2d at 356.) A guardian ad litem in Housing Court differs from an Article 17-A guardian in Surrogate's Court or a guardian appointed under Mental Health Law Article 81. (See Siegal, NY Prac § 196 1 [4th ed].) Although the standard to appoint a Housing Court GAL under CPLR Article 12 is that wards be incapable of adequately defending their own interests, a "ward must be judicially declared incompetent [to be] assigned an article 81 guardian." (1234 Broadway, 25 Misc 3d at 486.) Similarly, a ward must be certified "incapable to manage him or herself and/or his or her affairs by reason of mental retardation or developmental disability" to be appointed a guardian in Surrogate's Court. (Matter of Application of an Individual with a Disability for Leave to Change Her Name, 195 Misc 2d 497, 501-02 [Civ Ct, Richmond County 2003] [finding that a mentally retarded 19-year-old did not require the appointment of a GAL] [internal quotation marks omitted].) In this case, this court referred respondent to APS, which paid for an Article 12 GAL based on respondent's failure to appear in court on the initial return date. The only incapacity of which respondent has complained is a physical disability. That disability, while qualifying respondent for a GAL's protection, did not interfere with his ability to understand the nature and consequences of summary judgment in this proceeding.

Additionally, although CPLR 1203 provides safeguards from default judgments for individuals requiring a GAL's protection, these safeguards do not apply here. Default judgments are "invalid and unenforceable unless a guardian ad litem is appointed" at least 20 days before the default is entered. (Parras v Ricciardi, 185 Misc 2d 209, 213 [Hous Part, Civil Ct, Kings County 2000].) In this regard, default judgments may be vacated only when a GAL was not appointed before the court entered a default judgment against parties incapable of protecting their interests. (Sarfaty v Sarfaty, 83 AD2d 748, 749 [4th Dept 1981].) Thus, if a plaintiff knew about the defendant's possible mental incapacity and failed to alert the court of the defendant's infirmity so that the court could consider appointing a GAL, a default judgment should be vacated because the defendant did not have a GAL to protect the defendant's interests when the default was entered. (See e.g. Countrywide Home Funding Co. v Henry J.K., 16 Misc 3d 1132 [A], 2007 NY Slip Op 51674 [U], *3 [Sup Ct, Nassau County June 28, 2007].) If the court, however, has "order[ed] the appointment of a guardian ad litem the defendant's interests then will be deemed adequately protected." (Vincent Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR 1203 [1997 ed] [citation omitted].) Respondent's GAL was appointed in December 2008, more than six months before the July 2009 order, thus satisfying the 20-day requirement. The GAL adequately protected respondent's interests, and the default judgment must stand under CPLR 1203.

The amount of time that passed between when a default judgment was issued and when a party brings a motion to vacate the default may be considered to determine the reasonableness of an excuse. (See Kolajo by Kolajo v City of New York, 248 AD2d 512, 513 [2d Dept 1998] [*7][affirming denial of motion to vacate while noting that the City waited approximately seven months before moving to vacate default].) For example, a "tenant's two-month delay in seeking restoration" was not "fatal to [the tenant's] cause" when the tenant had been hospitalized. (Pomeroy Co. v Thompson, 5 Misc 3d 51, 52 [App Term, 1st Dept 2004].) Respondent's motion was brought within a year of the default judgment, as required by CPLR 5015. But respondent waited to challenge the grant of summary judgment for approximately five months, without any explanation for the delay, until the day to which this court stayed the execution of eviction: December 31, 2009. Respondent's delay in seeking vacatur suggests that if this court's July 2009 order were a default, the delay would not be excusable.

Whether Respondent Has A Meritorious Defense.

A party alleging an excusable default must include "an affidavit of merits" — some indication that the movant has at least an arguable claim or defense. (David Siegel, New York Practice § 108 [4th ed].) The affidavit must include more than "conclusory assertions" (Kolajo, 248 AD2d at 513), and an individual "with personal knowledge" must set forth evidentiary facts. (Peterson v Scandurra Trucking Co., Inc., 226 AD2d 691, 692 [2d Dept 1996].) Respondent submitted an affidavit including personal information and alleging as a meritorious defense that he should have qualified as a remaining family member. If respondent qualified as a remaining family member, this court would not have granted petitioner's motion for summary-judgment, and this proceeding would be dismissed.

Respondent's allegations follow: Respondent was a part of the original family composition. (Affidavit of Respondent ¶ 9.) Robert Richardson, respondent's brother, has a serious mental illness. (Affidavit of Respondent ¶ 11.) Robert Richardson submitted affidavits of income from 2000 to 2004; these affidavits include respondent's name. (Affidavit of Respondent ¶ 12.) NYCHA transferred Robert Richardson without advising him that "if he transferred, NYCHA would not be willing to recognize [respondent] as the tenant of the subject apartment." (Affidavit of Respondent ¶ 16.) NYCHA denied respondent's grievance request to be considered a remaining family member without a hearing before a NYCHA administrative law judge, and respondent has "never had the opportunity to present [his] case in a tribunal where [his] rights will be protected, a record made, and evidence presented to an impartial decision maker." (Affidavit of Respondent ¶ 20.)

To be eligible for Remaining Family Member status, prospective record tenants must demonstrate that they satisfy the requirements of NYCHA's Management Manual. (Goldman v New York City Hous. Auth., 63 AD3d 532, 532 [1st Dept 2009].) Under the Management Manual, an authorized permanent family member who would be "otherwise eligible for public housing in accordance with NYCHA's rules and regulations" must be in continuous occupancy of the subject apartment "up to and including the time the tenant of record vacates the apartment or dies." (NYCHA Management Manual, chap IV.) In this case, Robert Richardson did not die or permanently vacate the apartment; he transferred to a different apartment. His transfer would not have triggered Remaining Family Member status even if respondent had been an authorized [*8]family member.

Further, respondent was not an authorized member of the household. Under NYCHA's Management Manual, authorized permanent family members consist only of (1) original tenant family members who have remained in continuous occupancy, (2) family growths, and (3) family members who were granted permission in writing for permanent occupancy. (NYCHA Management Manual, chap III A). NYCHA's Management Manual provides that individuals who were a part of the original tenant family but moved out, "do not automatically obtain permission for permanent occupancy by virtue of their former occupancy, notwithstanding NYCHA's actual or constructive notice of the persons' return to the apartment. Such persons may obtain permission for permanent occupancy only if such permission is requested by the tenant of record and granted by the Housing Manager in writing." (NYCHA Management Manual, chap III C 3) [emphases in original].) Living in a NYCHA apartment with NYCHA's knowledge but not NYCHA's explicit permission does not entitle the individual to become a remaining family member. (Farkas v New York City Hous. Auth., 17 Misc 3d 1122 [A], 2007 NY Slip Op 52107 [U], *4 [Sup Ct, NY County Sept. 26, 2007].) Respondent was a part of the original tenant family; he moved out in 1978. NYCHA did not grant respondent permission to rejoin the family composition. Thus, respondent does not have a meritorious defense.

Respondent argues that when Robert Richardson submitted affidavits of income listing respondent as a member of the household from 2000-2004, NYCHA should have treated the affidavits of income as "requests for his addition to the tenant household." (Affidavit of Respondent ¶ 39.) But the only way to obtain written permission is by using a signed permission request form. (NYCHA Management Manual, chap III. C.) Even if NYCHA did not provide the necessary permission forms, NYCHA may deny an application for Remaining Family Member status if the occupant did not obtain NYCHA'S written permission. (Hutcherson v New York City Hous. Auth., 19 AD3d 246, 246 [1st Dept 2005].) Including respondent's name on Robert Richardson's affidavits of income does not satisfy NYCHA's rule's and regulations. Further, on each affidavit between 2001 and 2004, respondent consistently wrote "in abstentia" next to his signature. This acknowledged that he was not an approved resident for the subject apartment but, instead, was continuing to live there despite NYCHA's refusal to grant permission. Respondent knew that he was not an approved resident and cannot now claim the benefits of Remaining Family Member status.

NYCHA's written-permission requirement may be waived only under specific circumstances. An occupant who can make "a showing that the Authority was aware of the petitioner['s] having taken up residence in the unit, and implicitly approved it" might be able to "establish[] a right to be treated as a remaining family member despite the absence of notice or written consent. " (McFarlane v New York City Hous. Auth., 9 AD3d 289, 291 [1st Dept 2004].) The instant case is the third time, however, that NYCHA has taken action against respondent's unauthorized residence, and respondent offers no evidence that NYCHA implicitly approved of his occupying of the subject apartment. [*9]

Respondent also argues that Robert Richardson's mental disability, along with respondent's physical disability, "warranted a reasonable accommodation with respect to NYCHA's written approval requirement." (Affidavit of Lawrence ¶ 40.) Respondent does not have standing to request an accommodation on his brother's behalf. (See Monges v Rhea, 26 Misc 3d 1214 [A], 2009 NY Slip Op 52720 [U], *2-3 [U] [Sup Ct, NY County Dec. 16, 2009] [denying unauthorized occupant's Article 78 petition for NYCHA to consider the daughter of record tenant as a remaining family member and holding that petitioner did not have standing to allege that NYCHA failed to accommodate the record tenant's disability.].) And as to respondent himself, this court appointed a competent GAL to protect his rights in light of his physical disability. This court's dealings with respondent show that respondent was able to understand NYCHA procedures and what would happen if he did not obtain NYCHA's written consent.

Respondent is unable to demonstrate that he can prevail on the merits should he be granted a hearing on whether he should have qualified as a Remaining Family Member. Nothing shows as a matter of law that respondent qualifies as a remaining family member for the subject apartment under NYCHA's rules and regulations. Without both an excusable default and meritorious defense, respondent's motion to vacate the July 2009 judgment must be denied, and the grant of summary judgment must remain in effect. The warrant of execution can be stayed no longer. The six-month period within which a court may exercise its discretion to stay the execution of a warrant has passed. (See RPAPL 753 [1].)

For the foregoing reasons, respondent's motion is denied in full.

This opinion is the court's decision and order.

Dated: April 5, 2010.

J.H.C.