Landlord and Tenant - Summary Proceedings - Vacatur of Default Judgment upon Appointment of Guardian Ad Litem

Guardian and Ward - Guardian Ad Litem - Appointment of Guardian Ad Litem for Tenant in Nonpayment Summary Proceeding

New York City Department of Social Services, Office of Legal Affairs, New York City (Osaid I. Saad of counsel), for movant.

Jayson Blau & Associates, Bronx (Jayson Adam Blau of counsel), for petitioner.

R.R., respondent pro se.

The decision/order on the Department of Social Services' (DSS) order to show cause is as follows:

This nonpayment proceeding was commenced by notice of petition and petition dated June 30, 2023, seeking possession and unpaid rental arrears for the subject premises located at 2504 Bronx Park East, unit/apt 5E, Bronx, NY 10467. R.R.'s (respondent) tenancy is subject to a federal rent subsidy pursuant to a housing assistance payments (HAP) contract and the rent is that which was determined by the New York City Housing Authority (NYCHA) to be respondent's portion of the contract rent. Petitioner alleges to have served respondent with the underlying pleadings by conspicuous place service on August 26, 2023, after reasonable application to personally serve him at the subject premises failed. (See NY St Cts Elec Filing [NYSCEF] Doc No. 3.) Postcards were also mailed to the subject premises on or about August 31, 2023, notifying respondent that a nonpayment case was started and their failure to come to court may result in an eviction. Respondent failed to answer the petition which caused petitioner to hire a marshal to requisition a default warrant on February 8, 2024. Petitioner then needed to requisition a new warrant due to the untimely passing of Marshal Bia and a second warrant later issued to Marshal Rivera. A default judgment was entered on June 17, 2024. (See NYSCEF Doc No. 10.) A notice of eviction dated{**86 Misc 3d at 173} October 2, 2024, was sent to respondent with an earliest eviction date of October 17, 2024.

The underlying order to show cause (OSC) was filed on November 6, 2024, by Acting Corporation Counsel of the City of New York on behalf of the New York City Department of Social Services (DSS), as a friend of the respondent, seeking appointment of a guardian ad litem (GAL) for respondent, a stay of execution of any warrant of eviction and vacatur of any judgment issued in this proceeding. DSS also seeks that, pursuant to Directive & Procedure 199 (Civ Ct of City of NY, Directive & Pro 199 [eff Jan. 30, 2013] [DRP-199]), any psychiatric report and/or caseworker's affidavit in support of DSS' application to appoint a guardian be sealed. The OSC was signed and made returnable November 22, 2024. Despite proof of proper service on all parties, including respondent, respondent failed to appear in person. Petitioner [*2]filed written opposition to the motion. (See NYSCEF Doc No. 17.) After argument, the court reserved decision.

DSS asserts that respondent is a 63-year-old adult incapable of adequately defending his rights due to his mental and physical health and, absent intervention of a GAL, he would be unable to protect his tenancy rights. (See CPLR 1201.) In support, DSS relies on a psychiatric report by Dr. Arshad Zaidi, not attached to their motion but instead "to be provided" to the court in person on the return date due to "sensitive information" contained therein which would be made public record if uploaded to NYSCEF. DSS also seeks vacatur of the underlying judgment alleging it was entered in contravention of CPLR 1203 which states that "[n]o default judgment may be entered against an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed unless twenty days have expired since the appointment." On the return date of the motion, a physical copy of the psychiatric report was given to the court only and petitioner was expressly denied the ability to view it by DSS.

In opposition, petitioner argues the relief must be denied in its entirety because they have not received a complete copy of the motion papers due to DSS' withholding of the medical report. (See CPLR 2103 [e].) Petitioner asserts that not being privy�to said report amounts to a violation of due process and cannot serve as a basis to vacate the default judgment and warrant. DSS' motion had anticipated this very issue and claimed they were not required to serve certain portions of the{**86 Misc 3d at 174} motion, such as the psychiatric report, on petitioner pursuant to special rules under CPLR 1202 (b) governing service of motions to appoint a GAL. Basically, petitioner is not a party entitled to service of the notice of a motion for the appointment of a GAL and lacks standing to even challenge DSS' motion seeking the appointment of a GAL. (See Matter of Ungar v Feller, 24 Misc 3d 1222[A], 2009 NY Slip Op 51554[U] [Sup Ct, Kings County 2009].) Petitioner's objection is that service of a motion seeking the appointment of a GAL must be made in accordance with both CPLR 1202 (b) and 2103 (e) and that an adverse affected party has standing to oppose a motion to appoint a GAL just as it would have a reciprocal right to file a motion for a GAL.

An agency acting to protect interests of a party in the capacity of aiding that adult qualifies as that party's "friend" within the meaning of the statute permitting appointment of a GAL upon motion of a friend. (CPLR 1202 [a].) The appointment of a GAL 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. (CPLR 1201.) The position of guardian ad litem "is not a decision-making position; it is an appointment of assistance." (Matter of Prospect Union Assoc. v DeJesus, 167 AD3d 540, 542 [1st Dept 2018].) Courts have found that standard can be met where DSS submits a report by a medical professional that supports such a finding. (New York Life Ins. Co. v V.K., 184 Misc 2d 727 [Civ Ct, NY County 1999].)

It is the court's duty to protect a litigant who is incapable of protecting his or her interests which "extends not only to the person but also his or her property." (Soybel v Gruber, 132 Misc 2d 343, 347 [Civ Ct, NY County 1986], citing Barone v Cox, 51 AD2d 115 [4th Dept 1976].) A Housing Court judge's appointment of a CPLR article 12 guardian does not amount to a judicial declaration of incompetence. An article 12 appointment only requires the court to find that, "based on the record, adult prospective wards are unable adequately to help themselves in a judicial proceeding. . . . The nature of the inadequacy is undefined. The ward's incapacity might be cultural, linguistic, physical, intellectual, or psychological, to name a few." (1234 Broadway LLC v Feng Chai Lin, 25 Misc 3d 476, 483-484 [Civ Ct, NY County 2009].)

Courts have avowed that when a party has moved for appointment of a GAL of another party in the action the ordinary{**86 Misc 3d at 175} rules of service do not apply. For example, in one case the court [*3]found that service of the notice of motion for a guardian on that party's attorney, as normally appropriate under CPLR 2103 (b), was technically insufficient because it failed to comport with CPLR 1202 (b), for the latter required that "the person who would be represented be served personally upon such a motion [so that] the person . . . be given an opportunity to be heard." (Bocina v Schlau, 125 Misc 2d 682, 683 [Sup Ct, Suffolk County 1984] [emphasis added], citing Matter of Weingarten v State of New York, 94 Misc 2d 788, 790 [Ct Cl 1978] ["In the absence of a judicial declaration of incompetence or other court determination of her mental condition, due process requires that she be given an opportunity to be heard"].) Petitioner is correct in that " 'any other party to the action,' such as the adversary of an infant or person under disability, may make the motion [for a guardian] in order to ensure the effectiveness of the proceedings." (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR 1202, citing CPLR 1202 [a] [3].) This court avers, contrary to DSS' argument, that the service provisions under CPLR 1202 (b) are concerned with service of notice of motion on the individual for whom appointment is sought for due process concerns, not the other parties to an action. DSS has not submitted any precedent to suggest otherwise and only relied on the plain reading of CPLR 1202 (b). Therefore, this court concludes that petitioner is a party with standing and ought to be served with a copy of the notice of motion for appointment of a guardian. The court notes that here, DSS' motion was served on petitioner through NYSCEF without the medical report.

The court had the opportunity to review the report from Dr. Arshad Zaidi of the Office of Health and Mental Health Services, Visiting Psychiatric Services, and it leads the court to reasonably conclude that respondent falls within the protections and purview of CPLR 1201. The novel issue that remains is that petitioner believes they must be afforded an opportunity to view the report in support of the instant motion in full in order to address it on the merits. Petitioner's motion does not offer any facts or information, such as an affidavit, to dispute respondent's alleged "condition"; instead, petitioner objects to the form of the motion which, although was "on notice," deliberately left out the factual bases for requesting the appointment (the medical/psych report) and only alerted petitioner that respondent is "impaired." While it is true that failure to attach and{**86 Misc 3d at 176} upload all exhibits made part of a motion deprives the opposing party of a complete record, this argument fails here and is addressed later in this decision. (See Arnoff v Grunberg, 2018 NY Slip Op 30083[U] [Sup Ct, NY County 2018].)

Incapacitated and disabled individuals are often subject to summary proceedings because they are vulnerable to the very things that can cause someone to be in Housing Court. The Housing Court does what it can to assist these individuals by appointing guardians, oftentimes sua sponte, where DSS fails to step in or Adult Protective Services (APS) deems them to have "sufficient mental and physical capacity" despite how evident their need may be. There are times where this court wonders if certain individuals would be better served by the appointment of a Mental Hygiene Law article 81 guardian with decision-making abilities that article 12 guardians simply do not have. It is a true balancing act to ensure an incapacitated or disabled individual can adequately defend their rights in Housing Court while dealing with the financial and property interests of the petitioner landlord. Where an individual has failed to appear in court and their disability or need is not apparent to the presiding judge, with the caveat that even if they did, many disabilities are not visible to the naked eye, DSS is in a privileged position to enlist medical professionals to shed light on their condition. How that vital information is communicated to the court and how the opposing party may or may not have access to it is a topic worth delving into.

Usually, the medical reports submitted to the court start with an explanation as to how the evaluating physician obtained the information therein. In the instant report, Dr. Zaidi alleges [*4]to have told respondent the "purpose of the evaluation is to assist Adult Protective Services with case planning and make recommendations, that [his] role is different from that of a treating clinician, and that [his] findings are not strictly confidential. The client did not object and agreed to proceed." (Emphasis added.) Therefore, the report is neither automatically private nor sealed. DSS' motion requested to seal certain documents pursuant to DRP-199, specifically, the medical report. The court's signing of the OSC on November 7, 2024, ordered that pending the hearing of this motion, the "psychiatric report submitted in support of this application is sealed" pursuant to DRP-199 and 22 NYCRR 216.1 to the court and the public. Interestingly, petitioner's opposition speaks to DSS' confidentiality concerns and how it may be addressed by{**86 Misc 3d at 177} the court's sealing of the report or by redaction of the filing and "providing Petitioner an unredacted version of the report so that it can be on notice." (See NYSCEF Doc No. 17, affirmation in opp ¶ 23.)

In the context of article 81 proceedings, medical and psychological records are considered confidential (CPLR 4504 [a]; 4507) since most of the time, the allegedly incapacitated person is likely to be an "unwilling and involuntary participant[ ]" who cannot waive evidentiary privileges versus a party who participates voluntarily by putting their medical condition in question, such as plaintiffs involved in personal injury matters. (Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677[U], *7 [Sup Ct, NY County 2006].) Outside of Housing Court, issues of privacy can be addressed such as with the use of court evaluators. The duties of a court evaluator include investigating the medical, financial, mental, and physical condition of the person and making a written report of his findings and recommendations to the court. (See Mental Hygiene Law § 81.09 [c].) Then where appropriate, judges are able to seal a court evaluator's report from the public so as not to violate the incapacitated person's privacy. (Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677[U] [2006]; see also Liapakis v Sullivan, 290 AD2d 393 [1st Dept 2002].) Conceivably the Housing Court would benefit from the use of similar evaluators, where appropriate.

Prior to implementation of e-filing in Housing Court, physical copies of motions and orders to show cause were submitted at the clerk's office and questions raised in this motion did not arise. DSS' motion was submitted electronically on NYSCEF and did not append the medical report. While the court understands why DSS was wary to file the report on NYSCEF, all documents maintained under electronic filing fall within the rules of the Appellate Division such as section 1245.8 titled "Confidentiality; Sealed Documents; Redaction," which states:

"E-filed matters deemed confidential by statute or court directive, as well as sealed documents or documents that are the subject of an application to seal in an e-filed matter, shall be filed and maintained on the NYSCEF site in a manner that precludes viewing by the public and such other persons as the case may require. In all matters, authorized e-filers shall attest to compliance with statutory redaction requirements (e.g., General{**86 Misc 3d at 178} Business Law section 399-ddd) and relevant sealing requirements in filings." (Rules of App Div, All Depts [22 NYCRR] § 1245.8 [emphasis added].)

Therefore, all documents, even documents containing confidential personal information (CPI), are to be maintained on NYSCEF. For purposes of this rule, CPI is referring to specific data such as a Social Security number, not necessarily the kind of information DSS is seeking to protect. Perhaps it was a fiction for this court to order that the psych report be "sealed" prior to its availability. Nonetheless, based on the allegations contained in the OSC, the court thought it appropriate to preliminarily seal it. That is the reason why the report would not have been available to petitioner.

There is an option to "provisionally seal" or "request to seal" a document on NYSCEF [*5]which will result in the document in question being filed in a "restricted" status pending action by the court. This can also be done by filing an application in hard copy form with "Notice of Hard Copy Submission" annexed. This way, the court is able to rule on the sealing application while temporarily restricting access to the document maintained on NYSCEF. If the court decides to seal the document, the moving party must file a Notification for Sealing (Form EF-7) to alert the County Clerk to seal the document. Going forward, DSS is advised to utilize this proper procedure when making these applications.

22 NYCRR 216.1 (b) applies to court records which "include all documents and records of any nature filed with the clerk in connection with the action." As artfully explained by the Appellate Division, Second Department, "confidentiality is the exception" to the general rule (Mancheski v Gabelli Group Capital Partners, 39 AD3d 499, 502 [2d Dept 2007]) and in deciding whether the exception is properly invoked, the court must weigh the interests of the public against those of the parties. The burden of proof falls on the party seeking to seal the court records. (Mosallem v Berenson, 76 AD3d 345 [1st Dept 2010].) Furthermore, "[a] finding of 'good cause' presupposes that public access to the documents at issue will likely result in harm to a compelling interest of the movant." (Mancheski v Gabelli Group Capital Partners, 39 AD3d at 502.) Although the meaning of "good cause" is not defined, "a sealing order should clearly be predicated upon a sound basis or legitimate need to take judicial action." (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 28 AD3d 322, 325 [1st Dept 2006]; Ava v NYP Holdings,{**86 Misc 3d at 179}Inc., 64 AD3d 407 [1st Dept 2009]; see also Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1 [1st Dept 2000] [the court must make an independent determination of whether to seal court records in whole or in part for good cause].)

DRP-199 became effective January 30, 2013, as a policy to address concerns regarding Housing Court files containing litigant's psychiatric evaluations. It states: "[P]ursuant to 22 NYCRR Section 216.1 Judges shall seal any part of Housing Court files containing medical and/or psychiatric reports or information" and describes the procedure to be followed when the court directs that such reports or information be sealed to the court and the public. Upon sealing such documents, the directive goes on to state that "[t]he envelope containing the sealed documents . . . shall be given to the judge hearing the petition by the ADCC or his/her designee, upon request." Last but not least, it advises that "any request to see any sealed record must be made by motion or Order to Show Cause." (Emphasis added.)

Here, given the sensitive nature of the medical history and information contained in the report, the court finds good cause to keep it under seal pursuant to DRP-199 and 22 NYCRR 216.1. (See John C. v Martha A., 156 Misc 2d 222 [Civ Ct, NY County 1992] [seal of entire court file in a landlord/tenant matter because information about respondent's HIV status was interspersed throughout the record]; Frey v Itzkowitz, 2019 NY Slip Op 31062[U] [Sup Ct, NY County 2019] [good cause in circumstances where the information is regarding a matter conventionally confidential such as personal medical records].) Petitioner's opposition failed to state a valid reason for why the medical information should be made available to them, other than that the overall result of granting DSS' motion and appointing a GAL would be the vacatur of their default judgment and warrant. The court does not find that to be relevant to whether the medical report should remain under judicial protection. The court is not depriving petitioner of their ability to proceed in this case or even ultimately obtain a judgment and warrant on the merits. Respondent's medical condition is not actually relevant to this nonpayment proceeding. The court is simply upholding its duty to ensure respondent can participate in this case while sealing [*6]private medical information that could result in harm to respondent if made available to the public. Furthermore, as per DRP-199, any request to "see" a sealed document must be made by motion or order to show{**86 Misc 3d at 180} cause. Petitioner never filed a cross-motion, on notice, alleging good cause to unseal the report and giving DSS and respondent the opportunity to appear and defend against such a request.

As noted earlier in this opinion, the court finds, based on a preponderance of the evidence in the record and respondent's failure to appear, a GAL should be appointed to protect respondent's interests. To that point, the court finds that the default judgment and warrant must be vacated. Even absent a motion, the court has the "power to open its judgments for good cause and in furtherance of justice." (New York Life Ins. Co. v V.K., 184 Misc 2d 727, 737-738 [Civ Ct, NY County 1999].) Courts have concluded that CPLR 1201 and 1203 supplant 5015 (a) because "an incapacitated person cannot knowingly and intelligently waive a substantive legal right, including the gravamen of a defaulted proceeding." (Id. at 736; see also Bronx Park Phase II Preserv. LLC v V.C., 56 Misc 3d 1218[A], 2017 NY Slip Op 51063[U], *5 [Civ Ct, Bronx County 2017] [Vacating the default judgment is also warranted by the strong public policies in this state favoring the resolution of cases on the merits rather than on default].)

Accordingly, it is so ordered that any default judgment and warrant entered against respondent is vacated forthwith; ordered that a guardian ad litem be appointed for respondent; ordered that the psychiatric report submitted in support of this application is sealed to the court and the public to protect the privacy interests of respondent in accordance with DRP-199; and ordered that DSS upload a copy of the psychiatric report to NYSCEF under seal, pursuant to this order, within 10 days.