After considering the testimony and the other evidence at the hearing herein, the court makes the following findings of fact, reaches the following conclusions of law, and denies the City of New York's Department of Social Services' ("DSS") motion for the appointment of a guardian ad litem ("GAL") for Maureen O'Sullivan and for related relief. The warrant may be executed upon the service, or re-service by mail, of a marshal's notice.

Background

The above-captioned is a holdover proceeding predicated upon allegations of nuisance. Initially brought against James O'Sullivan and Maureen O'Sullivan, the proceeding was discontinued against James O'Sullivan because he had been dead for many years.

Petitioner alleged that it might terminate Margaret O'Sullivan's occupancy of the premises, a rent-stabilized apartment, on the grounds of nuisance, i.e., because she maintained the apartment in a condition dangerous to the health and safety of other tenants in the building, to petitioner's employees, and to firefighters and police officers and anyone else who might need to enter the apartment.

The proceeding was first returnable on November 21, 2012 when it was adjourned to January 9, 2013. On that date it was adjourned to February 27, 2013 for trial. Respondent appeared on the first two of these dates. A handwritten note on the court file jacket on January 9, 2013 reads: "work in process per resp who was advised to seek counsel."

On February 27, 2013 the proceeding was adjourned to April 10, 2013 for inquest and also for a referral to the City of New York's Adult Protective Services agency ("APS"). Respondent did not appear on that date and the proceeding was adjourned to April 29, 2013 for inquest. On that date the proceeding was adjourned to May 20, 2013; a handwritten note on the court file jacket specified that the proceeding was adjourned for inquest and for an APS referral, and the note also specified that the court would mail a postcard to respondent notifying her of the adjourned date. On May 20, 2013 the proceeding was adjourned to June 4, 2013 for, as is handwritten on the court file jacket, inquest and "status of APS referral."

In a report dated May 17, 2013, APS determined that James O'Sullivan was not eligible for the agency's services because he was dead. The report, signed off by both a caseworker and a supervisor, explains: "Rosa Moskowitz 718 615-1157 in the management office, was contacted on 5/16/13. She stated client died over 12 years ago; and his daughter, Maureen Osullivan [sic] lives in the apt. Maureen Osullivan [sic] is not on the lease, but has been signing the lease since her father died." Surprisingly perhaps, APS did not evaluate Maureen O'Sullivan at that time.

On June 4, 2013, as noted on the file jacket, the proceeding was adjourned to June 25, 2013 for "APS to assess Maureen O'Sullivan." On that date the proceeding was adjourned to July 23, 2013 "for APS status." On that date the proceeding was adjourned to August 6, 2013. [*2]On that date it was adjourned to September 11, 2013; the handwritten note on the court file jacket is: "Case adj. For Trial or Inq. No GAL motion by APS. Case is 10 months old, Resp is refusing access to APS & LL in this nuisance hoarder case."

On September 11, 2013 the case was adjourned to October 16, 2013 for inquest. On October 16, 2013 the court (Sikowitz, J.) conducted an inquest and thereupon granted petitioner a judgment of possession and allowed for the issuance of a warrant. A warrant issued on November 21, 2013.

By an order to show cause sought on December 12, 2013 and made returnable on December 23, 2013, DSS moved for the appointment of a GAL and related relief. However, DSS did not serve the moving papers. The court denied the motion for that reason. By an order to show cause sought on December 30, 2013 DSS moved again for the same relief. On the January 16, 2014 return date the court granted the motion to the extent of scheduling a hearing on February 26, 2014 on whether a GAL should be appointed. On that date the case was transferred to a trial assignment part and thereafter the requisite hearing was held. The parties were given an opportunity to file post-hearing briefs and the matter was deemed submitted.

The Hearing

Respondent did not appear for the hearing and the court was unable to observe her directly. DSS presented one witness, Dr. Wesley Stradone. He is a salaried employee of the City of New York's Human Resources Administration ("HRA") and has been a board-certified psychiatrist since 1999. As described below, Dr. Stradone met once with respondent for about 45 to 50 minutes. On the basis of that meeting, the City urges the appointment of a GAL.

The meeting took placein the hallway just outside of respondent's apartment. Dr. Stradone had gone there with a caseworker, and also with two police officers and a locksmith in case it were necessary to enforce an "access order" that had been granted in a different proceeding in the Supreme Court of the State of New York, Kings County. By chance they met O'Sullivan in the hallway as she was taking two dogs out for a walk. She agreed at that time to an interview then and there, and enforcement of the access order was not needed.

The interview took place in the hallway because the apartment door could not be opened wide enough for Dr. Stradone to enter. He testified that he could not open the door wider than 18 inches even though he and the officers tried to push it open wider than that. Dr Stadone testified that he was able to peer into the apartment and that he saw clutter and debris two to three feet high obstructing the entire length of the apartment's hallway which he estimated at 30 feet. He testified that "[t]he clutter seemed to be an organic mix of newspapers, of books, clothes, and [what] perhaps looked like dog feces. The odor smelled like dog feces and urine. It was all mixed in." Later in the hearing he testified that the dog feces and urine had a "horrible smell." He testified at another point in the hearing that respondent is shorter and thinner than he is, and that she was able to squeeze or shimmy her way into the apartment.

Dr. Stradone made clear to respondent that he was acting not as a treating physician but in his role as a consultant to HRA. Forthright in his testimony, he acknowledged that his relationship with respondent was not a doctor-patient relationship. He explained to her at the outset that there was no confidentiality to anything that she told him. He testified that if he thought respondent were sick, nonetheless he would not recommend a particular course of treatment, although he would encourage her generally to see a doctor or to otherwise get medical care. He made plain as well that barring unusual circumstances he would not follow-up to find out whether any suggestion or recommendation that he might make had been acted upon.

Neither, he testified, would he attempt to verify respondent's assertions; doing so would take him outside of his assigned role. For example, respondent told him that she had been prescribed a number of medications, but when he asked for their names, she could remember only one. He asked her to look in her apartment for the labeled pill containers and to show them to him; she entered the apartment but returned a few minutes later stating that she could not find them. She told Dr. Stradone the name of her physician but she could not remember his phone number; it was clear from Dr. Stradone's testimony that he believed it was not part of his assignment to try to contact that doctor. For another example, he testified that respondent told him that she had been employed for 30 years by the Board of Education of the City of New York and that she had three masters degrees in education, but he believed it was not part of his assignment to determine whether this was true or false, in whole or in part.

Dr. Stradone diagnosed respondent as suffering from "recurrent major depression." When asked on cross-examination how he could make a diagnosis without investigating the truth of underlying statements, he explained that his method was to assume that her statements were true, to formulate a diagnosis on the basis of those statements and his other observations, and if later statements were consistent with that diagnosis and there was consistency to the presentation, then he would treat the diagnosis not as needing revision but as having been confirmed^[FN1] . He testified that respondent's dysfunctional lifestyle, including her failures to come to court, was wholly consistent with the diagnosis. He concluded with the following recommendation:

"I recommended that APS help her with getting heavy-duty cleaning, with home care services, particularly housekeeping services in place to help her maintain the apartment once cleaned, to help her set up an appointment and go to see a psychiatrist for treatment of the mood disorder. I recommended a guardian ad litem to address and help with the housing court crisis as well as that she may need an Article 81 guardianship brought if she were facing eviction."

Conclusion

CPLR § 1201 fixes the standard for appointing a GAL. In pertinent part it provides that a [*3]person shall appear by a guardian ad litem if the person "is an adult incapable of adequately prosecuting or defending his rights." Here, no showing has been made in this nuisance holdover proceeding that respondent has any rights to be prosecuted or defended; indeed, Dr. Stradone's testimony corroborates the allegations in the predicate notice and the pleadings. Further, vacating the default herein would require, among other things, a prima facie showing of a meritorious defense; nothing has been presented that might be probative of the same.

The housing part of the Civil Court was established some forty years ago and "its stated mission was to improve the housing stock." Scherer, Residential Landlord-Tenant Law in New York § 7:47 (2011). Section 110(a) of the New York City Civil Court Act provides that this court is to establish and enforce "housing standards, including but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York * * * *" Here it is plain that the conditions at the premises do not improve the housing stock; instead, they degrade it. The court cannot ignore the foregoing, and the court cannot ignore either the threat to the health and safety of respondent, her neighbors and their children, and any emergency personnel who might have to enter respondent's apartment^[FN2] . As Dr. Stradone's testimony made plain, appointment of a guardian ad litem is not a pre-condition for APS to perform the heavy-duty clean-up that is necessary here; indeed, there is no reason to think that the appointment of a GAL would facilitate or expedite the same. Meanwhile, if there are issues regarding financial management and the nonpayment of the rent, which apparently is well within respondent's means, these lie beyond the authority of a CPLR Article 12 GAL, but are well within those of a MHL Article 81 guardian.DSS' motion is denied. The court will mail copies of this decision and order to the parties.