Costello v. St. Luke's Hospital Center

83 A.D.2d 503, 441 N.Y.S.2d 4, 1981 N.Y. App. Div. LEXIS 14791

Opinions

Order, Supreme Court, New York County (Shainswit, J.), entered December 16, 1980, which denied appellant’s motion to renew and reargue, reversed, on the law, the motion and cross motions by the defendants for summay judgment denied, without prejudice to an application for, or sua sponte determination by Special Term as to, appointment of guardian ad litem, without costs. Appeal from order, Supreme Court, New York County (Shainswit, J.), entered July 17, 1980, which dismissed the individual claims of plaintiff-appellant James Costello and stayed the action by the infant plaintiff Anthony Costello until a proper representative was substituted as guardian ad litem, dismissed as academic, without costs. While the court has considerable discretion under CPLR article 12 concerning the representation of an infant, nevertheless, it should not have granted summary judgment here as to the natural father’s status as guardian ad litem, or as to his derivative action, where the record reveals conflicting factual allegations concerning the issues of legal custody, abandonment, fitness of the natural father and possible conflict of interest. Concur — Sandler, Sullivan, Carro and Fein, JJ.