Guardian and Ward - Appointment of Guardian - Holdover Proceeding - Fact-Finding Hearing or Briefing Required to Determine Grounds for Requesting Guardian and Whether Guardian Needed

[*2]The Legal Aid Society, Brooklyn Neighborhood Office, Brooklyn, for B.M., respondent.

Green & Cohen, P.C., New York City, for petitioner.

This is a holdover proceeding seeking possession of the premises from respondent B.M. pursuant to a 60-day notice of termination. After a variety of adjournments and a transfer to the trial part, eventually the respondent failed to appear and a default judgment pursuant to an inquest was granted to the benefit of the petitioner. Respondent brought their own order to show cause (seq 4) as a self-represented litigant claiming that the default judgment should be vacated because their rent was paid for by the Human Resources Administration (HRA, hereinafter). While the court attempts to give self-represented litigants the benefit of the doubt with regards to legal arguments made, here the court cannot decipher upon what grounds the respondent seeks to vacate the default judgment in sequence 4. As petitioner points out, under CPLR 5015, the respondent would have to show a reasonable excuse first and then a meritorious claim (Li Fen Li v Cannon Co., Inc., 155 AD3d 858 [2d Dept 2017]). The court need not analyze the meritorious claim if the moving party cannot establish a reasonable excuse for their absence (Matter of MAPFRE Ins. Co. of NY v Callahan, 164 AD3d 1243 [2d Dept 2018]). Here, the movant has not made out a reasonable excuse. His papers merely state the rent was paid (see NY St Cts Elec Filing [NYSCEF] Doc No. 21). While this could be interpreted to formulate a meritorious claim of vitiation of the predicate notice, the court does not credit this statement as a reasonable excuse for the movant's absence. As such, sequence 4 is denied in its entirety.

The court then turns to sequence 5. After sequence 4, the respondent was able to retain counsel [*3]who submitted an omnibus motion seeking a variety of relief. Respondent's counsel seeks to supplement sequence 4. As the motion is largely duplicative of the instant motion and has been dealt with, the court denies this branch of the motion as moot. As secondary relief, respondent seeks to anonymize the caption of the proceeding, the parties both consented to this change, and it has been amended in the court system case management software. As such, the second branch of the motion has been settled. Respondent then moves to have a CPLR article 12 guardian ad litem (hereinafter GAL) appointed for the respondent. Upon doing so, respondent seeks the vacatur of the default judgment entered against the respondent on various grounds including CPLR 5015 (a) (1), CPLR 1203, and the court's inherent authority to enforce{**86 Misc 3d at 503} its own orders. Upon vacating the default judgment, respondent seeks that the proceeding be dismissed due to the alleged impropriety of the predicate notice both in substance and in service. In the alternative, respondent seeks to amend their answer and, in the last recourse, the respondent seeks a stay of the execution of the warrant of eviction for the respondent to vacate the premises after some "reasonable period of time." Petitioner submitted their opposition as to some relief and respondent submitted a reply. The court heard argument on January 27, 2025, and reserved decision.

There are three main types of guardianships in New York State that generally affect housing proceedings: article 81 guardians, article 17-a guardians and article 12 guardians. While article 12 guardians are the most common, it is worth briefly describing each of these types of guardians and their geneses. Article 81 guardians are the most involved type of guardianship and require a supreme court case to appoint someone to make decisions for another person. This dramatic outcome stems from article 81 of the Mental Hygiene Law. Article 17-a guardians are created by article 17-a of the Surrogate's Court Procedure Act, whereby a family member petitions the court to be named legal guardian for an adult who may have a condition which makes it difficult for them to make decisions for themselves, for example someone with a traumatic head injury. Article 12 guardians find their genesis directly in the CPLR, namely sections 1201 and 1202, and are used, in housing court, to assist litigants. Importantly, they are not a decision-making position but rather one which provides aid in applying for "public assistance or arranging clean-ups" (Matter of Prospect Union Assoc. v DeJesus, 167 AD3d 540, 542 [1st Dept 2018]). In fact, in extreme situations the GAL may not be able to provide the level of assistance required by the ward and be unable to enter into any type of agreement (Matter of New York Found. for Senior Citizens v Hamilton, 170 AD3d 543 [1st Dept 2019]). In these cases, some GALs have sought to make a referral for an article 81 guardianship with the HRA's Office of Legal Affairs.

While the above categories attempt to be formalistic in their appointment and procedure, the court cannot be blind to the realities of the programs as they interact with litigants in housing court. The GALs on the roster are overworked and under-resourced. The rates being paid for their aid fall far below the compensation level needed for the work required to meet the{**86 Misc 3d at 504} wards' needs. Some GALs have legal training and some of them do not.^[FN1] Some litigants do not work well with certain GALs and some GALs have different reactions to the wards they are assigned. As in life, not all matches are perfect. However, the GALs generally help the ward attend court, coordinate with Adult Protective Services and may be involved in negotiation with the other parties. The GAL program that services housing court is limited in a variety of ways, not only due to the shrinking [*4]roster of guardians but also due to circumstances of life. Some GALs cannot afford to be GALs for a prolonged period of time due to personal matters, some have health concerns that limit their mobility. Oftentimes the GALs appear instead of their wards at trials, and since they are not decision-makers, the trial becomes an inquest against a non-legally trained uninterested party.

Here, the respondent seeks to have a GAL appointed for the respondent for reasons unknown. As stated above, different GALs have different bandwidth and commitments. Respondent does not state why they seek to have a guardian appointed, especially now in the midst of being represented, ably, by counsel. This brings, before the court, a question of how guardians are rostered and trained and what is expected of them. Generally speaking, while the guardians are of an assistive quality, their abilities and resources are not limitless and, theoretically, each ward could have a multitude of needs that are interrelated to a housing issue.^[FN2] So to what end is a GAL sought, here? Particularly due to the panel approach to the rostering of guardians, which leads to extremely varied results.

One possible solution instead of an 18-b panel type of roster, the court or HRA could bring guardians in-house and pay them a salary to work with all of the wards who require the aid by borough, thereby streamlining not just the compensation mechanism and schedule but also the scheduling that tends to be difficult given the number of guardians and the fact their "representation" runs over all of the boroughs in the city. The court{**86 Misc 3d at 505} would still need a roster of available guardians, but the dependence on such a wide roster would lessen. In 2016, there were 1,600 GALs appointed by housing court.^[FN3] As of August 2023, HRA raised the compensation for each GAL to $1,050. Extrapolating that amount over the course of a year would result in close to $1.7 million per year. That amount would allow HRA or the Office of Court Administration, depending on which agency could best house these litigant services, to hire dedicated lawyers/social workers/mental health professionals to, with the resources of a government agency, assist the various wards. This may also have the positive effect of baselining the types of services provided by the GALs.

These guardianships should also be viewed in light of article XVII, § 1 of the New York State Constitution, which gives the state a wide-ranging mandate that states, in part, "The aid, care and support of the needy are public concerns and shall be provided by the state." The court must, as a state actor, imagine a better world being possible. It cannot ignore the article XVII directive and, as such, must make an inquiry as to whether a GAL is needed, when issues such as these are brought to the court's attention. In fact, this very court, under less sympathetic circumstances, has stressed its belief as to the importance of making the GAL inquiries (5712 Realty LLC v Ricketts, 85 Misc 3d 867 [Civ Ct, Kings County 2025]).[*5]

To that end, the court must turn its attention to the relief sought. The standard that must be met under CPLR 1201 is that a person "shall appear by . . . guardian ad litem" if they are an adult who is "incapable of adequately . . . defending his rights" (CPLR 1201). Further, respondent seeks to enforce another provision of the CPLR which states no default may be entered against an "adult incapable of adequately protecting his rights" (CPLR 1203; G&M Realty I LLC v Monell, 2022 NY Slip Op 34460[U] [Civ Ct, Bronx County 2022]).^[FN4]

Here, respondent's counsel argues that respondent previously had a GAL in a prior proceeding (L&T 76945-19KI), and {**86 Misc 3d at 506}that his underlying medical condition and the side effects of his current medication affect his ability to assert his claims and defenses and he therefore needs a guardian. The court finds that these allegations more likely than not call for the appointment of a guardian; however, the court also credits petitioner's argument that these allegations do not, as a matter of law, necessitate a guardian appointment. For example, petitioner is correct that the mere appointment, six years ago, of a guardian does not necessarily mean that the respondent requires one now, especially when the conditions alleged are not age-related. Further, underlying medical conditions and medication both can change with not only time but with the individual's body chemistry. Diseases fall in and out of remission, and new medicines, especially within the span of six years, change in their chemical makeup, potency and side effects as research continues. As such, the court cannot opine as to the necessity of a guardian without a fact-finding or, at least, further briefing of this particular issue. Petitioner may present allegations that respondent was and is adequately able to defend his rights and claims as evidence of the lack of need for a GAL. Protection under this statute, that is the appointment of a GAL, requires no specific diagnosis and may have determinations made "even . . . based upon the observations of a lay person" (529 W. 29th LLC v Reyes, 63 Misc 3d 65, 67 [App Term, 1st Dept 2019]). To that extent, petitioner will be able to make their argument against. At that time, the court will be able to hear such arguments and attach the appropriate weight and credibility. As such, the court holds in abeyance the remaining relief sought not enumerated above.