Defendant moves for an order, pursuant to CPLR §1202, appointing a guardian ad [*2]litem for the plaintiff for the purposes of prosecuting the within case, approving any possible settlement and executing any settlement documents.

The following papers were read:

Order to Show Cause-Affirmation-Exhibits A-I1-11

Affirmation in Opposition-Affidavit of Service12-13

Reply Affirmation-Affidavit of Service14-15

Upon the foregoing papers the order to show cause is decided as follows:

By way of background, this is an action for damages allegedly sustained by the plaintiff as a result of the claimed medical malpractice of the defendant. Prior to the filing of this motion and pursuant to "so-ordered" subpoenas of this Court, defendant obtained records relating to the confinement of the plaintiff at Mid-Hudson Forensic Psychiatric Center and the records of the Ulster County District Attorney relating to the prosecution of a criminal case against the plaintiff. On February 2, 2011, plaintiff attacked K.B. as she lay comatose at the Northeast Center for Special Care in Lake Katrine, New York. Plaintiff claims that this violent episode was caused and/or contributed to by the negligent prescription of allegedly contraindicated medication given to the plaintiff by the defendant. Plaintiff was charged by the Ulster County District Attorney with Attempted Murder in the Second Degree and Assault in the First Degree. A plea of not guilty by reason of mental defect was entered.

By order dated December 15, 2011, Hon. Donald A. Williams, Judge of the Ulster County Court, directed that, pursuant to CPL §330.20, plaintiff was to be examined by two qualified psychiatrists, designated by the State Commissioner of Mental Health and that the psychiatrists were then to prepare reports concerning their respective findings. Plaintiff was admitted to Mid-Hudson Forensic Psychiatric Center on January 3, 2012 for evaluation. Plaintiff was then examined by three doctors. Two psychiatrists expressed the opinion that plaintiff had a dangerous mental disorder and that he continued to constitute a physical danger to himself and others. The third examiner, a psychologist, opined that plaintiff did not have a dangerous mental disorder; rather, he was mentally ill, which necessitated inpatient care at a psychiatric center under the jurisdiction of the State Office of Mental Health. On April 24, 2012, there was a hearing before Judge Williams, wherein plaintiff was confined to the Mid-Hudson Forensic Psychiatric Center. Plaintiff remains at the Center to date.

CPLR §1201 in relevant part states: "A person shall appear by his guardian ad litem if he...is an adult incapable of adequately prosecuting or defending his rights." Here, the record clearly demonstrates that plaintiff suffers from a schizophrenic illness, with symptoms beginning in 2009 and continuing through the present. The most recent committee report, dated October 4, 2012 found that the plaintiff continues to suffer from a dangerous mental disorder and that he needs continued treatment at a maximum security [*3]inpatient facility. In opposition to the defendant's order to show cause, plaintiff offers a report of Dr. Michael B. First, M.D., which is not in admissible form and will not be considered by this Court, as it is neither sworn to nor affirmed (see CPLR 2106 and CPLR §2309).

As the plaintiff remains confined to Mid-Hudson Forensic Psychiatric Center with a recommendation of continued treatment at the Center, the Court is inclined to afford the plaintiff the protection of a guardian ad litem, pursuant to CPLR §1201 (see Brewster v. John Hancock Mut. Life Ins. Co., 280 AD2d 300 [1st Dept 2001] Rakiecki v. Ferenc, 21 AD2d 741 [4th Dept 1964]).

Based upon the foregoing, defendant's motion is granted. Jeffrey Albanese, Esq., 155 Main Street, P.O. Box 119, Goshen, New York 10924, (845) 294-6765, is appointed as guardian ad litem for the plaintiff to the extent of approving any possible settlement, executing any possible settlement documents and preserving and administering any funds which may accrue to plaintiff as a result of the prosecution of this case.

The parties are reminded that jury selection in this action is scheduled to begin on July 11, 2014 at 9:30 a.m. Adjournments are only granted with leave of the Court.

The foregoing constitutes the decision and order of the Court.

Dated: April 30, 2014

Poughkeepsie, New York

ENTER

_______________________________HON. JAMES D. PAGONES, A.J.S.C.TO:DUANE M. FIEDLER, ESQ.