Lave v Platsky

[*1] Lave v Platsky 2007 NY Slip Op 52003(U) [17 Misc 3d 132(A)] Decided on October 10, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 10, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2006-475 K C.

Stanley Lave and MARTIN LAVE, Respondents,

against

Henry Platsky, Appellant, -and- "JOHN and/or JANE DOE", Undertenants,  1;- COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, Nonparty-Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), dated March 1, 2006. The order granted a motion by the

Commissioner of the New York City Department of Social Services for appointment of a guardian ad litem for occupant. [*2]

Order reversed without costs and motion by the Commissioner of the New York City Department of Social Services for appointment of a guardian ad litem for occupant denied.

In this proceeding to evict occupant from a room in petitioners' apartment on the ground that he is a licensee whose license was terminated (RPAPL 713 [7]), the Commissioner of the New York City Department of Social Services (DSS) moved for the appointment of a guardian ad litem (GAL) for occupant. In support of the motion, DSS submitted a psychiatric evaluation report which concluded that occupant has a delusional disorder. Occupant opposed the motion, and a hearing was held, at which a DSS psychiatrist testified as to his diagnosis and recommended that a GAL be appointed. Occupant, appearing pro se, testified, examined witnesses and argued that even if he does suffer from some form of delusional disorder, he has demonstrated that he is competent to represent himself. Following the hearing, the court below granted the motion by DSS. We now reverse the order and deny the motion.

Pursuant to CPLR 1201, upon a motion for the appointment of a GAL, the court was required to determine whether occupant is incapable of adequately defending his rights in this summary proceeding. A review of the record indicates that occupant mounted a vigorous and appropriate opposition to the motion by DSS and demonstrated that the testimony of the DSS psychiatrist was insufficient because the witness did not establish a basis for his conclusion that occupant is incapable of defending himself. Rather, occupant, by his participation in the litigation, has amply demonstrated that he is capable of representing his own interests. Accordingly, the order is reversed and the motion by DSS for the appointment of a GAL denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 10, 2007