United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
COTE UNITED STATES DISTRICT JUDGE.
October 3, 2017 Opinion (“October 3 Opinion”)
held that the defendant Norman Ross owes $350, 200 plus
prejudgment interest to plaintiff Susan Butler. Butler v.
Ross, 16cv1282 (DLC), 2017 WL 4417700 (S.D.N.Y. Oct. 3,
2017). On October 4, the defendant filed a letter motion
requesting a hearing pursuant to N.Y. Mental Hyg. Law §
81. Briefing on the motion was fully submitted on October 12.
relevant section of the New York Mental Hygiene Law reads in
(a) The court may appoint a guardian for a person if the
1. that the appointment is necessary to provide for the
personal needs of that person, including food, clothing,
shelter, health care, or safety and/or to manage the property
and financial affairs of that person; and
2. that the person agrees to the appointment, or that the
person is incapacitated as defined in subdivision (b) of this
N.Y. Mental Hyg. Law § 81.02 (McKinney 2017). A court
“may appoint a guardian for a person or a person's
property upon determining, by clear and convincing evidence,
that the requirements of [Section] 81 have been met.”
Loftman v. Mae R, 999 N.Y.S.2d 166, 167 (N.Y.App.Div. 2014).
The purpose of the law is
to promote the public welfare by establishing a guardianship
system which is appropriate to satisfy either personal or
property management needs of an incapacitated person in a
manner tailored to the individual needs of that person, which
takes in account the personal wishes, preferences and desires
of the person, and which affords the person the greatest
amount of independence and self-determination and
participation in all the decisions affecting such
N.Y. Mental Hyg. Law § 81.01 (McKinney 2017). “A
guardian should be appointed only as a last resort, where no
available resources or other alternative will adequately
protect the alleged incapacitated person.” In re Harold
W. S., 22 N.Y.S.3d 73, 74 (N.Y.App.Div. 2015). New York law
does not provide that a court should decline to enter
judgment or vacate a judgment if a guardian is appointed.
submissions do not discuss the appointment of a guardian.
Ross's request for a hearing does not appear to refer to
a proceeding contemplated by the statute, that is, a
proceeding to determine incompetence and the necessity of a
guardian. For instance, Ross makes no effort to
follow the clear steps needed to initiate a Section 81
proceeding in his submissions. It is likewise unclear if Ross
is alleging incapacity, or if he is agreeing to the
appointment of a guardian, or if he understands the purpose
of the Mental Hygiene Law.
argues in broad strokes that the Court should look to Section
81 “by analogy” and refuse to enter a judgment
against Ross. He argues that the law looks unfavorably upon
individuals becoming public charges. Ross argues that he will
become a public charge if he is directed to pay the amount
owed to Butler. Ross cites a number of statutes and cases
from different contexts -- like divorce and immigration -- to
support his claim that courts should not enforce judgments
against individuals that are unable to pay. This argument is
to pay can be a defense to a contempt charge after a judgment
has been entered. See, e.g., Huber v. Marine Midland Bank, 51
F.3d 5, 10 (2d Cir. 1995) (“[A] party's complete
inability, due to poverty or insolvency, to comply with an
order to pay court-imposed monetary sanctions is a defense to
a charge of civil contempt.”) But it is not an
affirmative defense that Ross can rely on to avoid judgment.
Moreover, a simple assertion of the inability to pay is
insufficient in New York to avoid payment of a judgment. A
state court hearing will often be held, after judgment has
been entered and the defendant has refused to pay,
“only when demonstrated factual issues have been shown
to exist.” Ovsanikow v. Ovsanikow, 637 N.Y.S.2d 805,
806 (N.Y.App.Div. 1996) (emphasis supplied).
bottom, this motion is an effort to relitigate issues already
decided adversely to Ross. Section 81 of the New York Mental
Hygiene Law provides no avenue to Ross to present such
arguments and he has not shown any ...