Adelphi Assoc., LLCv.Gardner

Appellate Term of the Supreme Court of New York, Second DepartmentJan 4, 2008
2006-1332 K C (N.Y. Misc. 2008)
2006-1332 K C2008 N.Y. Slip Op. 50085

2006-1332 K C.

Decided on January 4, 2008.

Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated August 7, 2006. The order, insofar as appealed from as limited by the brief, denied tenant's post-eviction motion seeking in effect to vacate a stipulation and final judgment, and to be restored to possession.

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.


Order, insofar as appealed from, modified by providing that the branch of tenant's motion seeking in effect to vacate the stipulation and final judgment is granted and that branch of tenant's motion seeking to be restored to possession is denied without prejudice to renewal following trial of landlord's nonpayment petition, upon joinder of the new tenant in possession; as so modified, order affirmed without costs and matter remanded to the court below for trial and all further proceedings.

In this nonpayment proceeding, the court, upon application of the New York City Department of Social Services (DSS) pursuant to CPLR 1202, appointed a guardian ad litem (GAL) for tenant, an adult incapable of adequately prosecuting or defending his rights. Subsequently, the GAL entered into a stipulation, dated July 26, 2005, on tenant's behalf, in which it was agreed that, among other things, the nonpayment proceeding would be converted to a holdover proceeding and that a final judgment of possession would be entered and a warrant of eviction issued with execution to be stayed for one month. It is undisputed in the record that the GAL never met with or talked to tenant either before or after she entered into the stipulation. The record also indicates that the GAL was subsequently relieved of her appointment as GAL in this case and, according to DSS's papers, in all other cases as well.

Tenant was evicted in March 2006. He subsequently obtained counsel who informed him, allegedly for the first time, of the July 26, 2005 stipulation. Thereafter, tenant, through his counsel, moved, inter alia, in effect to vacate the stipulation of settlement and final judgment, and to be restored to possession, arguing, among other things, that the GAL lacked the authority to enter into the stipulation and that the stipulation was not in tenant's best interest. The court denied the motion.

On appeal, the City of New York, as amicus curiae, supports tenant's argument that the GAL lacked the authority to enter into a stipulation surrendering tenant's property rights without his consent.

We do not reach the issue of whether a GAL has the authority to consent to the entry of a final judgment against a tenant and to surrender possession of the tenant's apartment, since, even assuming that such authority exists, the stipulation must be vacated. In light of the courts' "continuing obligation to supervise the guardian ad litem's work" ( Neilson v Colgate-Palmolive Co., 199 F3d 642, 652 [2nd Cir 1999]) and their ultimate responsibility for the GAL's determinations ( Noe v True, 507 F2d 9, 12 [6th Cir 1974]), based upon the particular circumstances presented herein, we vacate the stipulation as inadvisedly entered into ( see e.g. BML Realty Group v Samuels, 15 Misc 3d 30 [App Term, 1st Dept 2007]; New York City Hous. Auth. v Jackson, 13 Misc 3d 141 [A], 2006 NY Slip Op 52265[U] [App Term, 2d 11th Jud Dists 2006]), as well as the final judgment entered pursuant thereto. Accordingly, the matter is remanded to the court below for trial on landlord's nonpayment petition.

Because there is apparently a new tenant in possession who has not been made a party, tenant's application to be restored to possession cannot be entertained without joinder of the current new tenant ( see e.g. Eight Assoc. v Hynes, 102 AD2d 746, affd 65 NY2d 739). Consequently, that part of tenant's motion seeking to be restored to possession is denied without prejudice to renewal, following trial on the nonpayment petition, upon joinder of the new tenant in possession. We note that, upon such renewal, a determination of tenant's application to be restored will require a careful balancing of the equities as between tenant and the new tenant in possession ( see e.g. 1397 E. 2nd LLC v Jackson, 10 Misc 3d 135 [A], 2005 NY Slip Op 52124[U] [App Term, 2d 11th Jud Dists 2005]; Chester Mamaroneck Gardens v Riggsbee, 189 Misc 2d 439 [App Term, 9th 10th Jud Dists 2001]), as well as consideration of, among other things, tenant's ability to pay both whatever judgment may be entered in favor of landlord and future rent.

In light of our decision, we do not reach tenant's other contentions.

Pesce, P.J., Golia and Rios, JJ., concur.