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In re Linden-Rath

Other Lower Courts

April 16, 2001

In the Matter of Florence Linden-Rath, an Incapacitated Person.

Page 538


Rita Lambek, guardian pro se. Jerry H. Goldfeder, New York City, for landlord.


Diane A. Lebedeff, J.

This matter involves a remarkably vigorous and charming woman, now approximately 103 years of age and the widow of a German count. For the past 50 years, she has lived in the same rent-regulated apartment, which has two bedrooms and a maid's room. The landlord has served a notice of termination, premised upon conditions in the apartment which are claimed to constitute a nuisance. However, the tenant is subject to a guardianship and the guardian now moves for a permanent stay of the notice of termination and the landlord desires to commence a summary holdover proceeding, which poses the legal issue which this decision must address.

As a matter of background, in 1999, the same landlord brought the underlying proceeding for appointment of a guardian pursuant to article 81 of the Mental Hygiene Law. The guardianship action was commenced upon the basis that the condition of the tenant's apartment indicated incapacity. The landlord did not then desire an eviction. The court evaluator's description of the clutter was grimly telling, portraying a massive collection of objects from a long and satisfying life jammed into the large apartment. Because the tenant recognized that she experienced difficulties in dealing with her affairs, a guardian of her person and property was appointed with her consent. Shortly after the guardian was appointed in September of 1999, the guardian had the apartment deep cleaned with the ward's consent and steadily discouraged the ward from bringing home bottles, cans and other objects collected in the street. The deep cleaning involved a significant economic commitment of many thousand dollars.

In March of 2000, the landlord moved for unspecified relief, complaining that the collecting activity continued and some excess objects remained in the apartment. On May 12, 2000,

Page 539

the court inspected the apartment in the presence of the ward, the guardian, the landlord, and the landlord's counsel. Conditions were remarkably improved. Quite persuasively, the guardian explained that, after the deep cleaning corrected hazardous conditions, a further gradual reduction of excess possessions allowed the ward to come to see the improved conditions as " normal," to appreciate the improvement, and to be proud of her apartment. The landlord's motion was marked off without prejudice to restoration (order of Aug. 8, 2000). The guardian then began to address apartment repairs, including painting. Other repairs, including plumbing repairs, were requested from the landlord.

In August of 2000, the landlord issued the subject notice of termination based upon allegations that the ward was creating a nuisance by (1) bringing dead flowers, cans and/or bottles into the apartment, (2) keeping newspapers and printed material in the apartment, (3) having old and rotten food in the apartment, and (4) maintaining the apartment in an unhealthy and hazardous condition, with an infestation of vermin. Prior to the termination date, the guardian sought a stay of the notice of termination from this Court and also sought a permanent stay of a summary proceeding seeking eviction.

Legal precedent clearly supports a motion by a guardian seeking a stay of litigation, upon the basis that approval of the appointing court must be secured to sue a guardian in his or her representative capacity. Once a guardian is appointed for an incapacitated person, litigation against a guardian as representative of the incapacitated person should not proceed without permission of the court which appointed the guardian (Carter v Beckwith, 128 N.Y. 312, 316 [1891]; Smith v Keteltas, 27 A.D. 279 [1st Dept. 1898]; Shatsky v Sea Gate Assn., 11 Misc.2d 905, 906 [Sup Ct, Kings County 1958]; Sinley v Estco, Inc., 25 Misc.2d 172, 175 [Sup Ct, Nassau County 1960]; Galante v Bucciarelli, 130 Misc.2d 1050 [Just Ct, Westchester County 1986, Nachman, J.]). It is accepted procedure that the claimant may move for such permission or that the fiduciary may seek a stay (see, Copeland v Salomon, 56 N.Y.2d 222, 229 [1982], quoting Pruyn v Black, 105 A.D. 302, 304 [3d Dept. 1905], affd sub nom. Pruyn v McCreary, 182 N.Y. 568 [1905] [in relation to the same principle as applicable to a court-appointed receiver, " (t)he court, on motion, may set aside or stay the proceeding commenced without its sanction" ]).

This obligation to obtain authority from the appointing court to sue a guardian cannot be waived by the guardian or by action

Page 540

of another court, nor is the appearance of a committee or guardian in another action tantamount to permission to sue (Dean v Halliburton,241 N.Y. 354 [1925]). [1] Even the appointment of a guardian ad litem by the other court does not excuse this requirement for, as ...

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