Matter of Lainez
Annotate this CaseDecided on April 20, 2006
Supreme Court, Kings County
In the Matter of Oliverio Smith-Guzman and Holly Ostrov-Ronai, Co-Petitioners, for the Appointment of Co-Guardian Ad Litems for Sylvia Lainez, Respondent.
7650/06
Diana A. Johnson, J.
Sylia Lainez is a forty one year old woman who is currently admitted to Jamaica Hospital. It is alleged that while a patient of Boulevard Multispeciality Medical she was injected in the spinal canal, rather than in neck muscle tissue, causing irreversible brain damage. She is presently on a respirator in a non-responsive vegetative state, unaware of her surroundings. Attached as Exhibit A to the petition is the affidavit of Ira Casson, M.D. who performed a neurological evaluation of Ms. Lainez. It is Dr. Casson's opinion that her condition is permanent.
The co-petitioners Oliverio Smith- Guzman and Holly Ostrov-Ronai, Esq. seek to be appointed co-guardians under CPLR §1201 alleging Ms. Lainez is an adult incapable of adequately prosecuting or defending her rights or able to direct counsel in the contemplated personal injury action. They seek CPLR §1201 "guardianship" rather than Article 81 Guardianship as it is a, "judicially rapid, non-consumptive of judicial resources, non-consumptive of legal resources, means of both providing the proper representation for the [*2]allegedly incompetent person; as well as instituting the underlying cause of action on her behalf." Petitioners concede that should a verdict or settlement result from the lawsuit, an Article 81 Guardian would have to be applied for.
Petitioner Oliverio Smith-Guzman is the spouse of the respondent Sylvia Lainez. It is alleged Mr. Guzman possesses poor English language skills, and therefore would benefit from a co-guardian ad litem.
Petitioner Holly Ostrov-Ronai, Esq. represents that she is the attorney of record for the case to be filed in Kings County Supreme Court, "LAINEZ v BOULEVARD MULTISPECIALTY MEDICAL" and that a retainer using a sliding scale medical malpractice fee has been executed. The agreed fee is, thirty two percent of the first two hundred fifty thousand; twenty five percent of the next two hundred fifty thousand dollars; twenty percent of the next five hundred thousand dollars; fifteen percent of the next two hundred fifty thousand dollars and; ten percent on any amount over one million two hundred fifty thousand dollars.
Other than for the exceptions listed in Part 36.1 (b)(2) of the Rules of the Chief Judge (22NYCRR Part 36), a guardian must be selected from an established list of applicants except upon a finding of good cause. One of the exceptions is where the proposed guardian is a relative of the incapacitated person such as Mr. Guzman. [§36.1(b)(2)(I)]. However, as part of the procedure to be qualified as a guardian ad litem, CPLR§ 1202(c) requires the written consent of the proposed guardian. In this application it is alleged that Oliverio Smith- Guzman possesses limited English language skills. That being so, his affidavit consenting to appointment as a guardian ad litem should have been accompanied by an affidavit of translation that his affidavit had been translated into his native language, and that he understood and consented to same. In addition CPLR §1202(c) further requires that the affidavit state facts showing ability to answer for any damage sustained by negligence or misconduct. In support thereof, Mr. Guzman indicates that the sum of two hundred dollars is his only asset. He does not set forth any indication as to his present income, if any. Due to these deficiencies the Court cannot appoint him as a guardian ad litem. (See Application of Weingarten, 94 Misc 2d 788 [Ct Cl 1978]).
Co-petitioner Holly Ostrov- Ronai, Esq. facially comes under the exception to the strictures of Part 36, as a guardian ad litem serving without compensation. [§36.1(b)(3)]. However, although counsel indicates that she is waiving the right to receive a fee for acting as the co-guardian, she is seeking her sliding scale medical malpractice fee in the underlying action. Part 36.2(d)(3) defines "compensation" as an award by a court of fees, commissions, allowances and other compensation, excluding costs and disbursements. The standard of approval for compensation being the fair value of the services rendered. [§36.4(b)(4)]. (See e.g. In Re Burk's Will, 6 AD2d 429(1st Dept 1958) citing Matter of Potts, 213 App Div 59 aff'd 241 NY 593, compensation for services by attorney acting as guardian for incompetent was determined in the same manner and based on the same criteria determining value of legal services).The attempted distinction herein of serving as a guardian ad litem without compensation, while at the same time seeking fees as attorney, is akin to attempting to parse the skin of an onion. When an attorney seeks to serve as a guardian ad litem and also recover a fee, whether denominated as legal fees or otherwise, then he/she must be appointed as provided in Part 36 of the Rules of the Chief Judge, notwithstanding the characterization of the compensation. Accordingly as Holly Ostrov-Ronai, Esq. is seeking compensation by way of her retainer fee and has failed to otherwise [*3]demonstrate good cause why she should not be subject to Part 36 of the Rules of the Chief Judge, the Court may not appoint her a guardian ad litem, unless she is on the appropriate list of applicants established by the Chief Administrator of the Courts. A search of the Court's Part 36 database reveals she is not on the list.
Further in that a retainer agreement was even executed, the Court finds confusing and somewhat disturbing. Ms. Lainez became unconscious several minutes after the alleged injection and has remained in that state since. She clearly could not have enterd into the retainer agreement. The papers do not indicate by whom and/or on whose authority the retainer agreement was executed. If the retainer is in fact invalid, any claim for legal fees must be made on application to the court to determine whether amounts requested are reasonable based on the services rendered, time spent and hourly rate claimed. DeSantis v Buren, 165 Misc 2d 291 (Sup Ct, Suffolk County 1995).
Finally seeking the appointment of the guardian ad litem, as opposed to Article 81 Guardian is not in the best interests of Ms. Lainez. If she was otherwise competent and was simply unable to prosecute her action before the court, the appointment of a guardian ad litem would be the preferred form of guardianship as courts prefer the least restrictive form of guardianship so as to not intrude on a person's life and activities. However, by co- petitioners admission, Ms. Lainez is in a vegetative state, unaware of her surroundings. A CPLR § 1201 guardian ad litem's authority relates only to the litigation before the court and is limited by the continued presumption of mental competency for all other purposes. W v M, NYLJ, July 28, 1997, at 28 col 5 (Sup Ct, NY County). Guardianship pursuant to Article 81 of the Mental Hygiene Law would be more efficacious in this case as the order of appointment can be tailored to fit the needs of Ms. Lainez's functional level and allow for, among other powers, medical treatment decisions to be made on her behalf as well as decisions concerning future placement.
Under the circumstances here, given Ms. Lainez's condition, the appointing of a guardian ad litem as opposed to an Article 81 Guardian also unnecessarily hinders a possible settlement of the action. A guardian ad litem is not authorized to apply to the court for approval of a proposed settlement, or to receive settlement proceeds as this is reserved to a guardian appointed pursuant to Article 81 of the Mental Hygiene Law. Turodov v Collazo, 215 AD2d 750 (2d Dept 1995 ). As such, defendant may feel that there is no purpose in engaging in meaningful settlement discussions, knowing the guardian ad litem has no authority to apply to the court for approval of the settlement, and no guarantee that the eventual Article 81 Guardian who is appointed would approve of the settlement. Under such a scenario the defendant may decide to simply try the case, and as pointed out by the petitioners herein, the underlying Supreme Court Action "will probably take years". Impeding the possibility of an expeditious monetary settlement which may improve Ms. Lainez quality of life or at the very least enable her to be placed in a superior facility does not serve her best interests. That an Article 81 Guardianship is "longer-winded" and is more cumbersome requiring the report of two doctors, the expense of a court appointed law guardian and annual reports, is not a reason to seek a guardian ad litem instead. Given the permanency of Ms. Lainez's condition and petitioners' acknowledgment that if a settlement or verdict results a Article 81 Guardianship is needed, moving for a guardian ad litem now only to move for an Article 81 Guardian later appears to be more a tactical decision than one based on Ms. Lainez's best interests. The simpler procedure for obtaining a guardian ad litem was not created for the [*4]purpose of testing the waters first, to determine the feasability of a monetary recovery and then if a monetary recovery is achieved commencing proceedings for an Article 81 Guardian. The type of guardian sought should be based on the best interests of the incompetent, not the convenience, economy or ease of the appointment.
The petition seeking the appointment of the co-petitioners as co-guardians ad litem is dismissed.
The foregoing constitutes the decision and order of the court.
E N T E R
J. S. C.
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