MHL ARTICLE 81 - New York State Unified Court System

Saratoga Hospital v. Timothy Chamberlain, (Sup. Ct., Saratoga Cty) Index No, 2000-3209
Oct. 11, 2001 (NOR) (copy attached)
Plaintiff, who initially sued an IP’s guardian without alleging that he was doing so in the guardian’s
representative capacity for the IP sought leave to amend his complaint. Court denied motion to
amend finding that the amendment is without merit because an IP is not adjudicated incapacitated
and thus may sue or be sued in the same manner as any other person. The court states “The proper
defendant is [the IP].”
Palamera v. Palamera, NYLJ, 6/7/01 (Sup. Ct., Kings Cty.)(Rappaport, J.)
Where proceeding brought under RPAPL 1521(1) to void real estate transaction on the theory that
the transferor lacked the capacity to make the transaction named the allegedly incapacitated
transferor as one of the plaintiffs, proceeding will be dismissed absent any proof that the transferor
possessed the capacity to retain counsel to pursue this claim. The proper procedure would have been
to apply for an Article 81 guardian and for the guardian to pursue the claim on behalf of his ward.
rd
Matter of City of Ithica (Barol), 283 A.D.2d 703,724 N.Y.S.2d 211 (3 Dept., 2001)
Court appoints special guardian for woman who was delinquent in real state taxes. finding that her
incapacity interfered with her ability to recognize that her failure to pay taxes will result in her loss
if her property. Special guardian fails to file bond and assume duties, is eventually dismissed and
no further guardian is appointed. Court reasons that there is no need for the special guardian since
a guardian ad litem can be appointed in the foreclosure proceedings. Such proceeding are then filed
against the woman personally as she now has no guardian. The pleadings do not assert that she may
have doubtful capacity but they do not mention the prior Art. 81 proceeding as part of the procedural
history. No hearing on her capacity is held and no guardian ad litem is appointed. Trial court
eventually grants foreclosure, Appellate Division reverses and remands stating that petitioner should
have been more diligent in bringing the capacity issue to the court's attention and developing it and
that once the issue of capacity was even raised, the court had the duty to protect a party incapable
of protecting her own interests, especially when her home is in controversy.
140 West Equities v. Fernandez, NYLJ, 8/16/00, p. 21 (Civ. Ct., NY Cty.)(Hoffman, J.)
Person with guardian can defend a civil suit only through the guardian.
Obsanzki v. Simon, NYLJ, 3/5/03, p.17., Col. 2 (Kramer, J.)
Person with guardian can defend a civil suit only through the guardian; Gal can not replace Art 81
guardians even where landlord did not know of the existence of the Art 81 guardian.
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