The City of New York's Department of Social Services ("DSS") moves to stay the execution of a warrant of eviction and for the appointment of a guardian ad litem. The motion is [*2]denied. The warrant may be executed upon the re-service by mail of a marshal's notice.

This is a nonpayment proceeding. The premises at issue is one apartment in a two-family house. Petitioners own the house and occupy one apartment; respondents occupy the other. Respondents Schretzmann, Schretzmann, and Blackwell became the tenants under a one-year lease that expired on May 31, 2015. For the period of time at issue herein the rent was $1,850.00 per month.

On the proceeding's first return date of January 16, 2015 the parties entered into a stipulation of settlement that was "so ordered" by the court. The stipulation provided that a judgment for $9,250.00 in rent arrears would be entered, that a warrant of eviction would issue, but that its execution would be stayed through February 17, 2015 for payment of all sums due. Respondents represented that they had applied or would apply to DSS for financial assistance.

Respondents did not pay by the deadline. By an order to show cause returnable on February 23, 2015 respondents moved for relief. In the supporting affidavit of Jackie Schretzmann respondents stated: "We applied for a one shot [loan from DSS] and was denied." By a decision and order dated February 23, 2015 the court (Marton, J.) adjourned the motion to March 17, 2015 so that respondents might renew their efforts to gain financial assistance from DSS. By a decision and order made on the March 17, 2015 return date the court (Lau, J.) granted the motion only to the extent of staying execution of the warrant through March 31, 2015 for payment of the rent arrears; these had grown to $12,950.00. The court wrote, among other things: "No further OSC w/o written proof of ability to pay in this short term (5/14) tenancy in this 2-family owner-occupied premises."

Respondents did not pay by this deadline. Petitioner had a marshal serve an eviction notice. Respondents moved for relief. By a decision and order dated May 13, 2015 the court (Marton, J.) denied the motion.

Now DSS moves for a stay of execution of the warrant. DSS seeks this relief on the ground that a guardian ad litem should be appointed for respondent Connie Schretzmann.

CPLR § 1201 fixes the standard for appointing a guardian ad litem. It provides in pertinent part that a person shall appear by a guardian ad litem if the person "is an adult incapable of adequately prosecuting or defending his rights." DSS does not claim that respondent has any pertinent rights to prosecute or to defend in this proceeding. The court's own examination uncovers none. The lease has expired and neither respondents nor DSS have offered to pay anything toward the rent arrears, which have grown to $18,500.00, or for use and occupancy going forward. DSS does not address its own denial of respondent's application for financial assistance. DSS does not argue that the stipulation "so ordered" on January 16, 2015 should be set aside, and DSS does not contend that the decision and order dated March 17, 2015 should be [*3]overturned ^[FN1] . Independently, the court does not see any basis for taking any of these steps.

DSS' moving papers purport to be supported by "a report of May 15, 2015, of DEBORAH SULLIVAN, N.P., a psychiatric consultant to the Commissioner of Social Services ...." (Affirmation of Raxenberg dated May 18, 2015, para. 6). However, what is annexed is only a copy. It is not sworn or affirmed, does not conform to CPLR 2106, does not bear an original signature, and must be deemed to have no probative value. Cf, Roach v Benjamin, 78 AD3d 468 (1st Dep't, 2010); Cannizzaro v King, 187 AD2d 842 (3rd Dep't, 1992).

Even if the court were to ignore ths legal insufficiency, and to overlook as well the moving papers' failure to show that Sullivan has relevant expertise, the court would find that the report does not show that respondent has any rights to be prosecuted or defended in this nonpayment proceeding. The report describes respondent as suffering from chronic illnesses for which medical care is necessary. However, by itself, chronic illness is not enough to meet the statutory standard; see, e.g., Matter of Casey J., 251 AD2d 1002 (4th Dept, 1998) where the court upheld not appointing a guardian ad litem for a paranoid schizophrenic with a history of drug and alcohol abuse while at the same time upholding the lower court's ruling that the proposed ward would be unable to provide proper and adequate care for his child. This court observed respondent on June 2, 2015 during the argument of DSS' motion and it was evident that she knew that the instant proceeding is a nonpayment proceeding, that she knew she had not paid the rent that was due under the stipulation that she had signed, that she was unable to pay it, and that her eviction loomed. See also, Roach v Benjamin, supra; 400 W. 59th St. Partners, LLC v Edwards, 28 Misc 3d 93 (App Term, 1st Dep't, 2010) in which the court upheld the lower court's denial of a motion to set aside a stipulation of settlement and to appoint a guardian ad litem for a tenant, which relief had been sought on the ground that only six months after the stipulation had been "so ordered" an Article 81 MHL guardian had been appointed for the tenant.

DSS states: "Upon information and belief, Adult Protective Services' (APS) plan for CONNIE SCHRETZMAN includes a possible Article 81 Guardianship." (Affirmation of Raxenberg, para. 9). However, DSS does not specify whether any steps to secure such a guardianship have been taken; this process can consume months whether successful or not. In other words, DSS' plan will have the inevitable and obvious consequence that respondents, whose request for assistance DSS has already denied, will remain rent-free at the premises, and that petitioners will remain uncompensated therefor and may be pushed closer to foreclosure or bankruptcy.

The Housing 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 * * * *" Buildings suffer wear and tear as they age, and it costs money to make the repairs needed to keep them code-compliant. Too, recurring expenses such as the City of New York's real estate taxes and water and sewer charges must be paid, as must, typically, mortgages and the cost of hot water and heat in winter. If petitioners are to be unable to collect all of the rent roll for the indefinite future, their ability to comply with governmental regulations will be undermined. How this might be in the best interest of the City of New York is an issue that DSS' moving papers do not address.

The moving papers do not make a showing sufficient to grant a stay or to appoint a guardian ad litem. DSS' motion is denied. The court will mail copies of this decision and order to the movant and to the parties.