Southern Industries, Inc. v. Esskay Fabrics, Inc.

81 A.D.2d 647, 438 N.Y.S.2d 341, 1981 N.Y. App. Div. LEXIS 11169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1981
• Status: Published

Opinion

— Appeal from an order of the Supreme Court, Nassau County, dated January 19, 1981 which, upon defendant Al Rosen’s motion for a discontinuance and postponement of a trial date, adjourned the trial and, in order to insure that the action might proceed in the face of Rosen’s impaired physical condition, appointed a guardian ad litem and provided for the payment of his fees. Order modified by deleting the provisions appointing a guardian ad litem and providing for payment of his fees. As so modified, order affirmed, without costs or disbursements. The trial is to proceed forthwith. Inasmuch as the nature of appellant’s physical impairment does not extend to his mental capability, the appointment of a guardian ad litem is unnecessary (see CPLR 321, 1201; cf. Sengstack v Sengstack, 4 NY2d 502; Leibowitz v Hunter, 45 Misc 2d 580). Appellant’s interests will be defended at trial by his attorney. Hopkins, J. P., Lazer, Hargett and Thompson, JJ., concur.