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Tower Insurance Co. of New York v. Estate of DeCosta

Supreme Court of New York, First Department

January 30, 2014

Tower Insurance Company of New York, Plaintiff-Respondent,
v.
The Estate of Darnley DeCosta c/o Sydney Gordon, etc., Defendant-Appellant, Lawrence Bennett, et al., Defendants-Respondents. [And A Third-Party Action]

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for appellant.

Mound Cotton Wollan & Greengrass, New York (Labe C. Feldman of counsel), for Tower Insurance Company of New York, respondent.

Jeffrey I. Schwimmer, New York, for Bennett respondents.

Gonzalez, P.J., Friedman, Renwick, Freedman, Richter, JJ.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered November 13, 2012, which, inter alia, denied appellants' motion seeking the appointment of a guardian ad litem (GAL) for Sydney Gordon, without prejudice to seeking such relief pursuant to Article 81 of Mental Hygiene Law, unanimously affirmed, without costs.

As an initial matter, the court did not neglect to consider appellants' application for a GAL pursuant to CPLR 1201, but expressly denied the motion. The court properly denied the motion, without a hearing, as appellants' moving papers were insufficient to make a prima facie demonstration of the need for the appointment of a GAL for Sydney Gordon (see Roach v Benjamin, 78 A.D.3d 468 [1st Dept 2010]; Urban Pathways v Lublin, 227 A.D.2d 186 [1st Dept 1996]).

In their initial papers, appellants submitted affidavits from counsel and Gordon's family, which generally described an elderly man with some memory loss and difficulties managing a multiple dwelling. They did not indicate that Gordon was incapable of prosecuting or defending his rights. Conspicuously absent were any medical records supporting appellants' position. Respondents, on the other hand, submitted the record of Gordon's most recent doctor visit, which did not support appellants' position, as, among other things, Gordon's treating physician expressly concluded that Gordon did not need a guardian and was able to handle his own affairs. Even the medical records by the same physician of earlier examinations, submitted for the first time in appellants' reply papers, were insufficient.


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