MHL ARTICLE 81 - New York State Unified Court System

person or by an attorney after a guardian has been appointed. While an IP remains liable for his
debts, an action to recover such debts must be commenced against the guardian in his representative
capacity and the caption of the action must designated the legal status of thedefendant as an IP.
CPLR 309 (b) requires that a plaintiff must serve BOTH the IP and guardian and CPLR 1203 states
that no default judgment may be entered against a person judicially declared to be incapacitated
unless his representative appears in the action or until 20 days after appointment of a GAL. Where
a creditor, through its attorney, ignored all of these principals and proceeded to a default judgment
against an IP after numerous interventions by his guardian, the court vacated the restraint in the IP’s
bank account, authorized the guardian’s attorney to move to have the default judgement vacated at
the creditor’s expense and directed the creditor and its attorney to appear before it to show cause why
they should not be held in contempt of court.
Countrywide Home Funding Co. v. Henry J.K., 16 Misc.3d 1132A; 847 N.Y.S.2d 900 (Sup.
Ct., Nassau County, 2007) (Asarch, J.)
IP’s guardian moved to have a default judgment of foreclosure against her home vacated. The
judgment had been entered subsequent to the IP’s hospitalization for mental illness but several years
before a guardian was appointed for her. The Court cited law establishing that a default judgment
entered against a party incapable of protecting his interests is invalid and unenforceable unless a
guardian ad litem is appointed for such person. Also, the fact that no committee or guardian has
been appointed at the time of a foreclosure action is not dispositive of whether the litigant is
operating under a disability. The Court therefore directed that a hearing be held to determine
whether the plaintiff mortgage company knew, or should have known, about the alleged incapacity
of the IP at the time of the foreclosure action.
Matter of the Application of Rosen, 16 Misc.3d 1108A; 2007 NY Slip Op 51348U (Sup. Ct.,
Otesego Cty. 2007)
Counsel appointed for an IP in a contested accounting proceeding which had occasioned by
allegations that the guardian first appointed had been self-dealing, did not approve of the proposed
terms of settlement of the accounting. However, the guardian appointed subsequent to the removal
of the first guardian did approve of the terms of the settlement. The court held that it was the
approval of the current guardian that controlled because it is not counsel but the client who approves
of a settlement and, this client being incapacitated has a guardian who by statute (MHL 81.21(a)
(20), and by the language of the order granting her powers, has the power to defend and maintain a
judicial action to its conclusion.
Walker v. Feller, 2005 U.S. Dist. LEXIS 17055 (EDNY)
Civil action brought by IP was dismissed, because once adjudicated incapacitated, he could not
bring suit on his own. However, while an incapacitated person cannot commence a civil action on
his or her own behalf, the Mental Hygiene Law specifically provides that such a person can seek to
remove the guardian "when the guardian fails to comply with an order, is guilty of misconduct, or
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