Court Won't Appoint GAL for Occupant

Landlord sued to evict apartment occupant, claiming that he was a mere licensee of deceased tenant. Landlord and occupant signed a settlement agreement in court. Occupant agreed to move out by July 31, 2013, to pay use and occupancy for the periods he was in the apartment, and to keep the apartment and outside hallway clean and clear of clutter. Occupant made all timely payments but failed to move out when required. Although he didn't seek to vacate the agreement, his attorney asked the court to appoint a guardian ad litem (GAL). The attorney didn't claim that her ability to represent occupant and settle the case was impaired by any claimed disability of occupant. But the attorney claimed that occupant wasn't prepared to comply with his obligation to move out and that he responded irrationally to her attempt to communicate with him about vacating.

The court denied the attorney's request. Civil Practice Law and Rules Section 1201 calls for the appointment of a GAL when a party is incapable of defending his rights, but a GAL's appointment is temporary and of limited capacity for the duration of a court proceeding only. The attorney sought appointment of the GAL to facilitate occupant's relocation. But generally this would more appropriately be a job for an Article 81 guardian than a GAL. The occupant had appeared in court before he retained an attorney, and the record showed absolutely no indication of incapacity. The settlement agreement was reached between the parties' attorneys after prolonged negotiations. Occupant's attorney claimed that when the time to move out approached, it became apparent that he had psychological problems connected with hoarding his personal property and probably didn't understand the agreement. But facilitation of a move after entry of judgment and issuance of a warrant isn't the function of a GAL. And occupant's attorney didn't claim that she was impeded from zealously representing her client by an incapacity or that appointing a GAL would make any difference. There also was no evidence presented of incapacity. The eviction was delayed until Aug. 30, 2013, and Adult Protective Services must be notified before the service of a marshal's notice and of any scheduled eviction date.

Fiduciary Trust Company International v. Mehta: 40 Misc.3d 1237(A), 2013 NY Slip Op 51333(U) (Civ Ct. NY; 8/15/13; Kraus, J)