Tucker v Volunteers of Am.

Tucker v Volunteers of Am. 2003 NY Slip Op 51327(U) Decided on October 8, 2003 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. Appellate Term, First Department

[*1] This opinion is uncorrected and will not be published in the Official Reports.
Digest-Index Classification:Appeal—Parties Aggrieved
Decided on October 8, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570185/03

WILLIE LEE TUCKER, Plaintiff-Appellant,

against

VOLUNTEERS OF AMERICA, ST. VINCENT'S

[*2]HOSPITAL, AND METROPOLITAN HOSPITAL, Defendants-Respondents.

Plaintiff appeal from an order of the Civil Court, New York County, entered December 16, 2002 (Eileen N. Nadelson, J.) which conditionally granted defendants' cross motions to strike the complaint pursuant to CPLR § 3126.

PER CURIAM:

Appeal from order entered December 16, 2002 (Eileen N. Nadelson, J.) dismissed, without costs.

The December 16, 2002 order appealed from, conditionally granting defendants' cross motions to strike the complaint based upon the pro se plaintiff's discovery defaults, was superseded by two subsequent, unappealed court orders, including the order of February 19, 2003 which "stayed" a determination on defendants' cross motions while affording plaintiff an opportunity to obtain counsel. Inasmuch as plaintiff is no longer aggrieved, the appeal must be dismissed (CPLR § 5511). We note that, in view of the record references to plaintiff's apparent schizophrenic condition, the [*3]appointment of a guardian ad litem by Civil Court may be warranted to safeguard plaintiff's rights in responding to defendants' dismissal motions and prosecuting the action (CPLR §§ 1201, 1202(a); see, Tucker v Smith, NYLJ, July 10, 2001, at 18, col 1 [App Term, 1st Dept]), a reality commendably acknowledged below by defendant Volunteers of America.

This constitutes the decision and order of the court.