Abrons v. Abrons

Appellate Division of the Supreme Court of New York

Abrons v. Abrons

24 A.D.2d 970, 265 N.Y.S.2d 381, 1965 N.Y. App. Div. LEXIS 2706

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1965

StatusPublished

Cited by2 cases

This text of 24 A.D.2d 970 (Abrons v. Abrons) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abrons v. Abrons, 24 A.D.2d 970, 265 N.Y.S.2d 381, 1965 N.Y. App. Div. LEXIS 2706 (N.Y. Ct. App. 1965).

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Opinion

Order, entered November 10, 1965, unanimously reversed, on the law, with $30 costs and disbursements to the defendant-appellant, and motion by defendant to vacate order of Special Term, rendered September 22, 1965, appointing a guardian ad litem for the defendant with direction for service of summons and complaint upon him, granted, with $10 costs. It was improper to appoint the guardian ad litem on application by the attorneys for the plaintiff without notice to the defendant, an adult (GPLR 1202, subd. [b]), and without satisfactory proof that the defendant, though allegedly mentally ill, was incapable of adequately protecting his rights. (GPLR 1201; see, further, Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 321.03, 1201.05; Sengstack v. Sengstack, 4 N Y 2d 502; Anonymous v. Anonymous, 3 A D 2d 590.) Furthermore, in determining whether the alleged incapacity of defendant warranted the appointment of a guardian ad litem, before granting such relief, under the circumstances in this ease, the court should have found on a proper record that it was not feasible to institute proceedings for the appointment of a committee of the property of the defendant. Anything less was a violation of the due process rights of the defendant, because the procedural requirements of ineompeteney proceedings would have been by-passed. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Order, entered November 10, 1965, unanimously reversed, on the law, with $30 costs and disbursements to the defendant-appellant, and motion by defendant to vacate order of Special Term, rendered September 22, 1965, appointing a guardian ad litem for the defendant with direction for service of summons and complaint upon him, granted, with $10 costs. It was improper to appoint the guardian ad litem on application by the attorneys for the plaintiff without notice to the defendant, an adult (GPLR 1202, subd. [b]), and without satisfactory proof that the defendant, though allegedly mentally ill, was incapable of adequately protecting his rights. (GPLR 1201; see, further, Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 321.03, 1201.05; Sengstack v. Sengstack, 4 N Y 2d 502; Anonymous v. Anonymous, 3 A D 2d 590.) Furthermore, in determining whether the alleged incapacity of defendant warranted the appointment of a guardian ad litem, before granting such relief, under the circumstances in this ease, the court should have found on a proper record that it was not feasible to institute proceedings for the appointment of a committee of the property of the defendant. Anything less was a violation of the due process rights of the defendant, because the procedural requirements of ineompeteney proceedings would have been by-passed. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

24 A.D.2d 970, 265 N.Y.S.2d 381, 1965 N.Y. App. Div. LEXIS 2706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrons-v-abrons-nyappdiv-1965.

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