Pacific Park LLC v M.W.
Annotate this CaseDecided on September 7, 2016
Civil Court of the City of New York, Kings County
Pacific Park LLC, Petitioner,
against
M.W., Respondent.
72501/16
Petitioner's counsel
Stern & Stern
50 Court Street - suite 1100
Brooklyn, NY 11201
(718) 939-9458
Counsel for Commissioner of Social Services
Corporation Counsel
150 Greenwich Street - 38th floor
New York, NY 10007
(929) 221-5352
Gary F. Marton, J.
The Department of Social Services ("DSS") of the City of New York ("City") moves for the appointment of a guardian ad litem, for respondent's restoration to possession of the premises, and for related relief [FN1] . The motion is denied.
Petitioner began the above-captioned nonpayment proceeding in June, 2016. Petitioner alleged that rent had not been paid for two years and that the arrears were $25,884.32. Respondent did not appear or answer. A default judgment was entered on July 20, 2016 and a warrant of eviction issued to Marshal Pazant on July 22, 2016. A copy of a report annexed to DSS' moving papers shows that on that date Pazant notified the City's Adult Protective Services ("APS") agency that respondent might be in need of that agency's services [FN2] .
The City's Human Resources Administration ("HRA") arranged for a psychiatrist, accompanied by two caseworkers with some prior knowledge of respondent, to visit respondent on August 1, 2016.
The psychiatrist, in her report dated August 1, 2016, states that respondent suffers from schizophrenia, had been hospitalized many times including five times in the prior 12 months, and had a long history of noncompliance with treatment including failure to take prescribed medications.
The psychiatrist also reports that respondent answered the door naked and refused to put on any clothes until the arrival of the police and EMS. The psychiatrist also states: "She has a h/o going outside or in the hallway naked ... as well as reportedly frightening children on her floor (cursing and yelling at them.) .... [The caseworkers and I] find three months of meds in her apartment, basically since her last hospitalization, unopened and not taken." The closing paragraph of the psychiatrist's formulation is: "She clearly needs supportive housing, with medication monitoring, because even with ACT and APS closely involved, and her parents trying to be [closely involved], she has been unable to manage her medical and psychiatric issues or care adequately for herself."
During the ensuing two weeks the City did not take any steps to prevent execution of the warrant. On August 15, 2016 respondent was evicted.
Four days later respondent, acting pro se, moved by an order to show cause to be restored to possession. However, on the motion's August 22, 2016 return date she did not appear and the motion was denied for her nonappearance.
Now, by an order to show cause sought on August 25, 2016, DSS moves for an order restoring respondent to possession of the premises, for the appointment of a guardian ad litem, and for the warrant and the default judgment herein to be vacated. After argument on September 2, 2016 and by a decision and order so dated, the court denied so much of the motion as sought restoration and reserved decision on the balance.
Now, for two reasons, the court denies the balance of the motion. One reason is that DSS did not serve a copy of the moving papers on respondent. The appointment of a guardian ad litem can have a significant adverse impact on the rights of a proposed ward. Accordingly, providing notice of the proposed adverse action and an opportunity to be heard is not an empty [*2]formality but instead is a basic requirement of due process of law. Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 (1950). When the court signed DSS' proposed order to show cause on August 25, 2016 the court required in-hand personal service on respondent by August 26, 2016. At argument DSS conceded that it knew where respondent was on August 26, 2016 - Interfaith Medical Center - but that its attempt at personal service failed.
The other reason is that the moving papers are not supported by the affidavit of a person with knowledge or the equivalent thereof. The psychiatrist's report annexed to the moving papers seems to be only a copy. Regardless of the foregoing, it is not signed by its alleged author, much less affirmed or otherwise made in conformity with CPLR 2106. It has no probative value, cf, Roach v Benjamin, 78 AD3d 468 (1st Dep't, 2010); Cannizzaro v King, 187 AD2d 842 (3rd Dep't, 1992).
DSS may seek renewal on proper service of proper papers. The court encourages DSS, should it seek renewal, to address the following two issues: (1) whether it would make sense to restore respondent to possession of the premises when the psychiatrist's report shows that respondent does not take her medications and will be a danger to herself and to her neighbors and their children, and (2) whether it would be in the City's best interest to require petitioner to house respondent for free for the indefinite future, i.e., until such time as the City, which, according to the psychiatrist's report, has known since 2004 of respondent's difficulties, finds supportive housing for her. Cf, Adelphi Assoc. LLC, v Gardner, 2008 NY Slip Op 50085(U) (App Term, 2nd & 11th Jud Dists, 2008), where the court held that a replacement guardian ad litem should be appointed for an evicted tenant but that restoration to possession would remain in abeyance until after a hearing on the issue, among others, of whether past due rent might be paid.
The court will mail copies of this decision and order to the parties.
Dated: September 7, 2016
Brooklyn, NY
_________________________________
Gary F. Marton Footnotes
Footnote 1:Sua sponte, the court uses initials instead of respondent's name because her identity is irrelevant and the discussion infra is potentially embarrassing.
Footnote 2:The report also shows that respondent was participating in "FMU." DSS' moving papers do not explain this term. The court believes that it stands for a financial management program run by the City. How respondent was able to fall into rent arrears while participating in FMU is an issue that DSS' moving papers do not address.
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