Defendant's motion for an order pursuant to CPLR 3212, dismissing plaintiffs' complaint for lack of capacity, ab initio, is denied. Defendant's motion for an order appointing a court designated administrator to serve as guardian ad litem, is granted. Plaintiffs' cross-motion for an order pursuant to CPLR 1201 and 1202, appointing Voula Koulouris as guardian ad litem, is denied.

The cause of action is for personal injuries allegedly sustained by plaintiff Vasiliki Milonas ("Vasiliki") when she was caused to fall and strike her head on the steps leading out of defendant's church located at 15 Leroy Street, Yonkers, New York, on April 4, 2010. Hospital admitting records indicate that Vasiliki was awake and alert, but also confused and disoriented. Shortly after admittance, Vasiliki lapsed into a coma and remained unresponsive until approximately June 25, 2010. Nursing notes, with varying dates between June 26, 2010 and July 29, 2010, indicate that plaintiff was alert yet nonverbal, responsive to verbal and tactile stimulation, and attempted to speak. On July 18 and 23, 2010, plaintiff spoke to her family in Greek, and attempted to speak on July 23, 2010. Since July 30, 2010, plaintiff has remained nonverbal.

On May 10, 2010, plaintiffs dated and executed a summons and complaint. The summons and complaint was thereafter filed on July 8, 2010. Plaintiffs allege the following three causes of action: (1) defendant was negligent in the care of its premises; (2) defendant's premises constituted a public and private nuisance and a trap for the unaware; and (3) plaintiff Constantinos Milonas suffered a loss of consortium. [*2]

Defendant previously moved for an order appointing a guardian ad litem and substitution of a conservator for Vasiliki and granting leave to amend its answer to assert the affirmative defense of Vasiliki's lack of capacity to sue. Defendant was granted leave to amend its papers. Defendant's motion for the appointment of a guardian ad litem was denied for failure to serve all parties entitled to notice and because this court found the motion to be premature.

Petitioner Voula Koulouris ("Koulouris"), Vasiliki's daughter, subsequently applied for an order appointing her as guardian ad litem. This court denied petitioner's application, with leave to renew, due to her failure to assert any facts to establish her financial resources upon which this court may assess her ability to answer for any damages that may arise as a result of any dereliction in the prosecution of Vasiliki's action.

Defendant moves for dismissal of the action pursuant to CPLR 3212 on the ground that Vasiliki lacked capacity to initiate the instant action. Defendant avers that: (1) on the date of the summons and complaint, May 10, 2010, it was impossible for Vasiliki to have communicated any information as to the incident or to make her wishes known; (2) the medical records indicate that Vasiliki spoke for the first time ten days after plaintiffs filed the summons and complaint; and (3) plaintiffs' counsel should have been aware that the appointment of a guardian adlitem was required to proceed with the litigation. In the event defendant's motion is denied, defendant requests that the court appoint a guardian ad litem for Vasiliki.

Plaintiffs oppose defendant's motion to dismiss on the ground that the motion is without merit. Plaintiffs acknowledge that Vasiliki was previously comatose, but aver that: (1) Vasiliki's medical records actually indicate that she was alert, responsive, and oriented to time and place at the time the action was commenced; (2) defendant's motion to dismiss is premised only on a portion of Vasiliki's medical records and the affirmation of an attorney who has neither personal knowledge nor the medical expertise to declare that plaintiff lacked the capacity to sue; and (3) Vasiliki's condition has declined since the commencement of the action. Plaintiffs submit the sworn affidavit of Koulouris, reiterating the fact that while Vasiliki was unable to discuss complex ideas and details at great length, she was able, at times, to communicate in Greek, as well as head and hand gestures, and that Vasiliki was able to provide the base knowledge needed for the complaint.

Plaintiffs cross-move for an order pursuant to CPLR 1201 and 1202, appointing Koularis as guardian ad litem of Vasiliki for the sole purpose of prosecuting defendant for damages. In a sworn affidavit, Koulouris states that she is a homemaker and her husband is employed as a restaurant manager. The couple maintains joint bank accounts at TD Bank, and if necessary, Koulouris is willing to post a bond. Vasiliki's other children and plaintiff Constantinos Milonas consent to Koulouris being appointed as guardian ad litem.

When faced with a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Martin v. Briggs, 235 AD2d 192 (1st Dept. 1997). The moving party carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). The [*3]motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions and written admissions." CPLR 3212(b). Once the movant has made this showing, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact. Zuckerman, 49 NY2d 557. When deciding a summary judgment motion, the role of the court is to make determinations as to the existence of issues of fact, and not credibility or issue determinations. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978).

Here, there exists a triable issue of fact as to Vasiliki's capacity at the time that the instant suit was commenced. Accordingly, defendant's motion for an order pursuant to CPLR 3212, dismissing plaintiffs' action for lack of capacity, ab initio, is denied.

This State's public policy is to afford "rigorous protection of the rights of the mentally infirm." (citations omitted). New York Life Ins. Co. v. V.K., 184 Misc 2d 727, 732 (Civ Ct, New York County 1999). "In cases governed by CPLR 1201, the legally disabled litigant does not lack the capacity to sue or to be sued; rather, he or she is considered a ward of the court whose appearance in the action must be made by a CPLR 1201 representative. The failure to appear by a CPLR 1201 representative is not jurisdictional in nature and may be cured nunc pro tunc, any time prior to judgment." (internal citations omitted). Sayers v. Winthrop Univ. Hosp., 28 Misc 3d 1201(A), *2 (2010).

"[A] guardian ad litem is justified when, based on a preponderance of the evidence, the court concludes that a party's condition impedes her ability to protect her rights." Id. "A person shall appear by his guardian ad litem if he is an adult incapable of adequately prosecuting or defending his rights." CPLR 1201. Procedural safeguards for the appointment of a guardian ad litem are governed by CPLR 1202. If an incompetent does not have a guardian, committee, or conservator, notice for appointment of a guardian ad litem must be served upon the person with whom the incompetent resides. See CPLR 1202(b). Additionally, "[n]o order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damages sustained by his negligence or misconduct." See CPLR 1202(c).

The preponderance of evidence in the record persuasively supports the conclusion that that Vasiliki cannot adequately prosecute or defend her rights due to her advanced age and medical condition. In a sworn affidavit, Vasiliki's physician stated that Vasiliki is unable to participate in the prosecution of her lawsuit and that she requires a guardian ad litem. Although Koulouris submits an affidavit stating that she is financially able to answer for any damages caused by her negligence or misconduct, if any, in prosecuting this matter, her affidavit is insufficient to comply with the requirements of CPLR 1202(c), as she merely indicates that her husband is a restaurant manager and that they share joint bank accounts. She fails to assert any additional facts or evidence regarding her financial resources so that this court may assess her financial ability to post an undertaking. See In re Smith-Guzman, 11 Misc 3d 1092(A) (Sup [*4]Ct, Kings County 2006); Application of Weingarten, 91 Misc 2d 788 (Ct Cl, 1978).

"The court may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of any other party to the action ." CPLR 1202(a). This court hereby appoints Myrna M. Socorro, Esq., with offices located at 778 Castle Hill Avenue, Bronx, New York 10473, telephone number: 718-931-2575, guardian ad litem to appear for Vasiliki and safeguard her interests in this action. Myrna M. Socorro, Esq., is from the list of candidates established by the Chief Administrator of the Courts (Rules of Chief Judge [22 NYCRR] § 36.1 [a]; § 36.2 [a]); qualifies under section 36.1(c); and has completed all curricula required by the Chief Administrator for appointment as a guardian ad litem. 22 NYCRR §36.5; see e.g., Matter of St. Luke's-Roosevelt Hosp. Ctr., 159 Misc 2d 932 (Sup Ct, New York County 1993). Myrna M. Socorro, Esq., consents to the appointment and is financially able to answer for any damages due to her misconduct or negligence in defending this matter. See CPLR 1202(c).

Accordingly, defendant's motion for an order pursuant to CPLR 3212, dismissing plaintiffs' action for lack of capacity, ab initio, is denied. Defendant's motion for an order appointing a court designated administrator to serve as guardian ad litem, is granted. Plaintiffs' cross-motion for an order pursuant to CPLR 1201 and 1202, appointing Koulouris as guardian ad litem, is denied.

Before the next appearance, Myrna M. Socorro, Esq., is directed to file written consent to the appointment and an affidavit showing her ability to answer for any negligence or misconduct. See CPLR 1202(c). The guardian ad litem also must comply with the certification and reporting requirements of 22 NYCRR 36.1(d) and 36.3(a).

Movant is directed to serve a copy of this order with notice of entry upon all parties, including Myrna M. Socorro, Esq., by regular and certified mail (return receipt not required) and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated: October 3, 2013

ENTER:

________________________

J.S.C.