Judge, Civil CourtRecitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

On February 10, 2015, after three years of litigation, NYC Department of Social Services (DDS) moved in Housing Court by OSC for appointment of a Guardian Ad Litem ("GAL") pursuant to CPLR 1201, 1202 (a) (2) and 1203.

This is a nonprimary residence holdover proceeding. LISCO contends that JEM resides in Brooklyn, not on St. Marks Place in Manhattan. At no point has there been a hearing on the merits. Instead, when JEM was directed to pay U & O to LISCO, he failed to do so. He also [*2]failed to provide discovery.^[FN1] Accordingly, on November 4, 2014, JEM's answer was stricken, a judgment of possession was entered and a warrant of eviction issued.

On April 17, 2015, Judge Milin held a hearing on DSS's OSC seeking appointment of a GAL at which Dr. Spain testified and was cross examined by the landlord, LISCO Holdings LLC ("LISCO"), but there was no final decision. Instead, on April 24, 2015, DSS moved for appointment of an Article 81 guardian. On August 26, 2015, after a hearing, this court appointed an Article 81 guardian.

In this L & T action, the guardian moved pursuant to CPLR 5015, to vacate the judgment against JEM. In a March 31, 2016 decision, the court directed a hearing on the issue of whether JEM was incapacitied at the time of the defaults. This court stated in its March 31, 2016 decision that based on Dr. Spain's report, JEM's deposition, and Dr. Spain's testimony before Judge Milin, JEM qualifies for a GAL. This court found that JEM's psychiatric conditions clearly impede his ability to protect his rights. However, this was dicta since the issue of whether to appoint a GAL was not before this court.

At the L & T hearing on July 21, 2016, DSS renewed its motion for a GAL.

CPLR 1202 (a) provides that the court may appoint a GAL "at any stage in the action." CPLR 1203 provides: "No default judgment may be entered against . . . an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed." CPLR 1203 invalidates "any default judgment entered against . . . a judicially declared incapacitated person for whom a . . . guardian has been appointed unless a proper representative has appeared in the action." Vincent Alexander, Practice Commentaries §1203 at 446. If a party had no GAL at the time of the default, and was not capable of defending itself, the judgment will be vacated. Id.

First, LISCO insists that there is no legal basis to vacate the order under CPLR 1203 since the judgment was awarded as a result of JEM's failure to comply with a court order, not a failure to appear. According to LISCO, failure to comply with a court order to pay U & O is not a default.

A "default" is "a failure." Blacks Law Dictionary 376 [5th ed 1979]. "Specifically, the omission or failure to perform a legal or contractual duty." Id. Though a default may occur early in the litigation, e.g. failure to answer, a default may occur later, e.g. failure to appear for trial. See Sarfaty v Sarfaty, 83 AD2d 748 (4th Dept 1981) (in matrimonial action, wife was represented by counsel and filed an answer. After attorney was relieved, she appeared pro se, but failed to appear for trial. Default judgment vacated because husband failed to inform court of wife's mental illness and hospitalization). Failure to comply with a stipulation of settlement constitutes a default. King 28 Associates v Raff, 167 2d 351 (Civil Ct, Kings County 1995). Therefore, the court rejects LISCO's first argument.

Second, LISCO argues that invalidation of prior defaults is not automatic when a GAL is appointed. While it is true that vacatur is not automatic, failure to do so may be reversible error. See Administrative Judge Advisory Notice, AN-8; LT-10 (March 7, 2007) and cases cited therein. Here, the court exercises its discretion to vacate the defaults for one reason: JEM's mental illness was apparent very early on in this case, yet no one notified the court to request a GAL.

At the time of the default on November 4, 2014, LISCO was aware of JEM's incapacity. Indeed, LISCO was aware of JEM's incapacity as early as 2012 when LISCO took JEM's [*3]deposition on May 17, 2012.^[FN2] At the deposition, JEM disclosed that he was designated 100% disabled by the U.S. military for which he receives $3,000 per month. T 145-146. Yet, there was no inquiry into the disability or disclosure to the court. JEM's responses at the deposition demonstrated paranoia or delusional thinking. For example, JEM explained that he was compelled to "stage" a divorce from his wife "so that the threats against my wife and my son, they distracted me that I had no one with me. That was done on purposely because as an undercover investigator I had to do that." Tr at 133-134. In response to a question about the places he frequents near his home, he responded "[a]s a private investigator, I can't. I don't have one place. I hide. I eat here. I camouflage my locations so nobody can follow me." Tr at 158. Moreover, in response to a question about whether the institution into which a VA payment is electronically deposited is an Armed Services Federal Credit Union, JEM asserted his fifth amendment privilege. Tr 150. His answers were bizarre nonsequitars. For example, when asked why his wife had not answered the complaint or appeared in the action, he responded that Jaguar Holdings, the former landlord, was not present at the deposition. Tr 139. When asked whether he shopped at a particular Staples store, he responded that he goes to Wendys and McDonalds to purchase food for hungry children. Tr 157.

During this litigation, JEM was at times represented by two different attorneys, and, at times not represented at all. Neither attorney alerted the court of JEM's apparent incapacity. Attorneys are required to alert the court to their own client's incapacity. See, Brewster v John Hancock Mutual Life Ins., 280 AD2d 300 (1st Dept 2001). While JEM was not represented on the date of the 2014 default, he was represented on May 17, 2012 at the deposition. Accordingly, his own attorney was aware of his disability and bizarre responses as early as 2012.

Since the court was not privy to the deposition and representation by attorneys would have shielded JEM from the court, the court would not have been exposed to JEM's behavior.

Accordingly, it is

ORDERED that the motion is granted. A GAL shall be appointed and all defaults, judgments and warrants are vacated. Parties shall appear for a pre-trial conference on January 26, 2017 at 2:30 pm; and it is further

ORDERED, that Cynthia Boyce, Esq., is appointed GAL.