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CAPACITY AND COMPETENCE IN LITIGATION By Michael G

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CAPACITY AND COMPETENCE IN LITIGATION By Michael G Powered By Docstoc
					                      CAPACITY AND COMPETENCE IN LITIGATION

                                                     By: Michael G. Glass
                                                     Rappaport, Glass, Green & Levine, LLP
       INTRODUCTION

       Issues of client competency arise in many contexts in litigation. The practitioner is well
advised to deal with client competency problems at the earliest possible moment in order to
avoid unnecessary delays in the lawsuit.

I.     LITIGATING FOR THE INCOMPETENT CLIENT - APPOINT A GUARDIAN
       AD LITEM

               When asked by family members of a non-adjudicated incompetent to commence
               a lawsuit on the incompetent=s behalf, the most efficient first step is the
               appointment of a Guardian Ad Litem. The process is easier and less expensive
               than appointing an Article 81 Guardian of the Property. A Guardian Ad Litem
               can be appointed whenever the claimant is unable to effectively prosecute his or
               her rights on her own. Application of Weingarten, 94 Misc.2d 788, 405 N.Y.S.2d
               605 (Ct. Cl. 1978). A formal finding of incompetence is not a prerequisite.
               Tudorov v. Collazo, 215 A.D. 2d 750, 627 N.Y.S.2d 419 (2d Dept. 1995). The
               GAL can authorize counsel to obtain relevant medical records, investigative
               materials and related documents necessary to the litigation. Suit can be
               commenced in the Guardian Ad Litem=s name and then, an Article 81 Guardian
               of the Property can be appointed during the pendency of the underlying lawsuit.

          1.   APPOINTMENT OF THE GUARDIAN AD LITEM -
               The CPLR Rule 1202 Roadmap:

               i. WHEN:       The request for an appointment of a GAL can be made at any stage
                              in the action.
               ii. WHO:       A relative, friend, party to the litigation or the Court sua sponte can
                              ask for a GUARDIAN AD LITEM.

                 $     Vinokur v. Balzaretti, 62 A.D.2d 990, 403 N.Y.S.2d 316 (2d Dept. 1978)
                      (friend of defendant qualifies for GUARDIAN AD LITEM purposes)
                 $     Soybel v. Gruber, 132 Misc. 2d 343, 504 N.Y.S.2d 354 (NYC Civ. Ct.
                      1986) (agency for elderly qualified as friend for GAL purposes)
                 $    CPLR 1202(a)(3) (adversary of incompetent may make the motion to
                      appoint a GUARDIAN AD LITEM).

               iii. HOW:      Application to appoint GAL must be served on the guardian of the
                              property, or if no guardian, on the person with whom the
                              incompetent resides. Notice of the application must also be
                              served upon the incompetent. CPLR Rule 1202(b)


                                                 1
       $     Shad v. Shad, 167 A.D.2d 532, 562 N.Y.S.2d 202 (2d Dept. 1990) appl.
             after remand, 213 A.D.2d 622, 624 N.Y.S.2d 949 (2d Dept. 1995)
             (hearing to be conducted if issues of fact exist as to whether GAL should
             be appointed).

The motion for a GUARDIAN AD LITEM should include an affidavit from the
proposed GUARDIAN AD LITEM expressing consent to the appointment and
demonstrating financial ability to pay damages. CPLR Rule 1202(c)

2.    GUARDIAN OF PROPERTY MUST BE SUBSTITUTED FOR GUARDIAN
      AD LITEM BEFORE SETTLEMENT MONEY IS RECEIVED

           a)       Even if an injured individual has been properly represented
                    by a Guardian Ad Litem during the course of a lawsuit, at
                    the time of settlement a Guardian of the Property (Article 81
                    of the Mental Hygiene Law) must be appointed and substituted
                    in the place instead of the Guardian Ad Litem. There is no
                    legal authority for a Guardian Ad Litem of an incapacitated
                    person to obtain a court-approved settlement.
                    Tudorov v. Collazo, 215 A.D.2d 750, 627 N.Y.S.2d 419
                    (2d Dept. 1995); DeSantis v. Bruen, 165 Misc.2d 291, 627
                    N.Y.S.2d 534 (Sup. Ct. Suffolk County 1995) New York CPLR
                    Section 1207, Commentary at 353.

3.    PROCEDURAL GUIDELINES FOR THE SETTLEMENT AND
      COMPROMISE OF A CLAIM OF AN INCOMPETENT

             i.     Settlement money must be distributed to the Article 81 Guardian
                    and used for the benefit of the incompetent. CPLR 1206

             ii.    The application to compromise is governed by CPLR 1207 and
                    1208, which detail the supporting documentation necessary.
                           Affidavit of the incompetent=s representative
                           Affidavit of attorney
                           Medical or hospital reports describing the injury (which
                           need not be verified).
                           (An affidavit of a physician is no longer a requirement.
                           CPLR Rule 1208.)

      At the time of the compromise, the moving party and the incompetent must
      appear before the court, unless attendance is excused for good cause.

      If, during the course of the litigation, a party becomes adjudicated an
      incompetent, or an Article 81conservator is appointed, the court must order


                                       2
      substitution of the
      Guardian. CPLR 1016.
              If the substitution is not made within a reasonable time, the action
              may be dismissed as against the incompetent. CPLR 1201.

             iii.    A CPLR 1207 Compromise is required whether or not formal
                     litigation has been commenced. Moreover parties cannot stipulate
                     to discontinue an action brought on behalf of an incompetent
                     without judicial permission. CPLR 3217(a)(2).

4.   REMOVAL OF THE GUARDIAN AD LITEM

      Occasionally, situations arise where counsel for an infant or incompetent
      concludes that the Guardian Ad Litem is taking positions adverse to his charge.
      Most often, this arises in the context of a settlement offer which is being
      rejected by the GUARDIAN AD LITEM without good cause. Generally, the
      court has the power to remove or revoke the authority of a Guardian Ad Litem at
      its discretion in order to protect the interests of the incompetent. See, e.g. Matter
      of Jennifer G., 110 A.D.2d 801, 487 N.Y.S.2d 864 (2d Dept. 1985); Lee v.
      Gucker, 16 Misc.2d 346, 186 N.Y.S.2d 700 (1959); Armour v. Broadman, 283
      A.D.2d 351, 128 N.Y.S.2d 281 (1st Dept.) affirmed 307 N.Y. 896 , 123 N.E.2d
      90 (1954) (court may approve settlement of infant without the infant ward=s
      consent).

      The court cannot, however, remove a guardian solely to insure approval of a
      settlement, since the power of the court to approve a settlement does not confer
      a concomitant power to dictate the terms of the settlement. In other words, where
      reasonable minds may legitimately differ, the judgment of the infant=s guardian
      should prevail.

              Stahl v. Rhee, 220 A.D.2d 39, 643 N.Y.S.2d 148 (2d Dept. 1996)
             (mother of mentally retarded infant was erroneously remove as Guardian
             Ad Litem to facilitate settlement of minor=s claim in action for personal
             injury).

              DeForte v. Liggett & Myers Tobacco Co., 42 Misc.2d 721, 722, 248
              N.Y.S.2d 764 (court rejected the wishes of the infant=s natural guardians
             regarding settlement but only after finding that the parents= refusal to
             consent to settlement was arbitrary and capricious and injurious to the
             rights of the infant plaintiff).

             Smith v. Ford Motor Company, 38 A.D.2d 852, 330 N.Y.S.2d 182 (2d
             Dept. 1972) (court may not force the representative to accept the terms of
             a particular settlement offer. Removal of a Guardian is a Adrastic
             procedure@ which can be accomplished in the court=s discretion, but only

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               upon a compelling record).


II.   INCOMPETENCY AND THE OATH

          a.   A mentally ill witness, even if formally adjudicated an incompetent, can
               nonetheless be sworn and testify at trial, if:
                        i.    The witness has sufficient intelligence to understand the
                              nature of an oath;
                        ii.   The witness can provide a reasonably accurate account of
                              what he has seen or heard.
          $     People v. Pullman, 234 A.D.2d 955, 652 N.Y.S.2d 433 (4th Dept. 1996),
               appl. denied, 89 N.Y.2d 1099, 660 N.Y.S.2d 393 (1997) (10 year old
               mentally disabled victim possesses sufficient capacity and intelligence to
               testify).

          $    People v. Armenia, 218 A.D.2d 747, 630 N.Y.S.2d 784 (2d Dept. 1995)
               (trial court did not abuse its discretion in allowing a 15 year old boy who
               was autistic to testify because he understood the nature of testifying under
               an oath).

          $    People v. Knowell, 94 A.D.2d 255, 464 N.Y.S.2d 525 (2d Dept. 1983)
               appl. after remand, 127 A.D.2d 794, 512 N.Y.S.2d 190 (2d Dept. 1987) (a
               witness is generally presumed competent, but evidence as to his mental
               condition may be admissible on the issue of credibility or on the issue of
               the witness= ability to perceive and recall events).

          b.   Taking Unsworn Testimony From An Incompetent.

                      i.      In a criminal proceeding an incompetent who cannot
                              understand the nature of an oath may nevertheless be
                              permitted to give UNSWORN TESTIMONY if the court
                              is satisfied that the witness possesses sufficient intelligence
                              and capacity to justify the reception of that testimony.
                              Criminal Procedure Law Section 60.20 (2).

                      ii.     There is no analogous rule in civil cases. Commentators
                              have suggested that there is no authority permitting
                              admission of unsworn testimony from an incompetent in a
                              civil proceeding. (See Barker & Alexander Evidence in
                              New York State and Federal Courts, Section 6.7 at 458).

                      iii.    A brain injured incompetent plaintiff may, however,
                              be exhibited and be asked to answer simple questions
                              before a civil jury to give the jury an opportunity to see
                              and evaluate his or her condition for damages purposes.

                                         4
                                 Harvey v. Mazal Partners, 79 N.Y.2d 218, 581 N.Y.S.2d
                                 639 (1992).

                          iv.    Burden of proof: Once a preliminary showing of a
                                 witness= competency has been made, the party challenging
                                 the competency has the burden of demonstrating
                                 incompetency. Wide discretion is accorded to the court
                                 in deciding such matters.
                                 In the matter of Luz P., 189 A.D.2d 274, 595 N.Y.S.2d 541
                                 (2d Dept. 1993)


III.   INCOMPETENCY AND THE STANDARD OF CARE

           a.     The Standard of Care For An Incompetent Tort DEFENDANT

           Although it is counter-intuitive, New York law provides that the mentally ill or
           developmentally disabled tort defendant is required to exercise toward others the
           same degree of care that a reasonably prudent person would use under the same
           circumstances. That is, the incompetent defendant is held to a reasonable man
           standard despite the incompetency when sued in tort.

                  William v. Hayes, 143 N.Y.442, 38 N.E. 449 (1894) (an insane person
                  is held liable for his torts the same as a sane person)

                  Sforza v. Green Bus Lines, Inc., 150 Misc. 180, 268 N.Y.S. 446 (NYC
                  Mun. Ct. 1934) (bus driver who suddenly went insane causing
                  accident must respond in damages as if he were sane)

                  Elliot v. Sternberg, 61 N.Y.S.2d 73 (NY Sup. Ct. 1946) (insanity of
                  wrongful death defendant in a civil lawsuit was not a supportable defense)

                  NY PJI 2:21

           b.     The Standard Of Care For The Incompetent Tort PLAINTIFF

           Paradoxically, for comparative negligence purposes, a person under mental
           disabilities is required to use that degree of care for his own safety which
           may be reasonably expected of a person having that same mental disability.
           That is, the incompetent tort plaintiff is not held to the reasonable man standard.
                   Horton v. Niagara Falls Memorial Medical Center, 51 A.D.2d 152, 380
                   N.Y.S.2d 116 (4th Dept. 1976), app=l den. 39 N.Y.2d 709, 386 N.Y.S.2d
                   1026 (1976) (jury permitted to consider plaintiff=s mental illness on issue
                   of contributory negligence)



                                            5
                  Mochen v. State, 43 A.D.2d 484, 352 N.Y.S.2d 290 (4th Dept. 1974)
                  (person who suffers from irrational impulses should only be held to a
                  standard of care consistent with his mental disability)

                  Nota bene: If the plaintiff is simply dull of mind (as opposed to mentally
                  disabled) and retains the capacity to appreciate and avoid
                  danger, that plaintiff will be charged with the same standard of care as
                  required of a normal person. (PJI 2:46, Commentary at 288).

           c.     The Defendant=s Enhanced Duty To Protect An Incompetent Plaintiff

                          (i)    A party has no legal responsibility to rescue or act on
                                 behalf of a disabled person for whom he has not
                                 volunteered to act. See, e.g., Zalack v. Carroll, 15 N.Y.2d
                                 753, 257 N.Y.S.2d 177 (1965); Dunham v. Canisteo, 303
                                 N.Y. 498, 104 N.E.2d 872 (1952).

                          (ii)   But, if a defendant knows, or even should know, of the
                                 incompetent plaintiff=s limited ability to protect himself
                                 from injury, then the defendant is required to use greater
                                 caution for the incompetent plaintiff=s safety. (Remember
                                 Palsgraf: the care to be exercised must be commensurate
                                 with the risk reasonably to be perceived).

                  cf. Stein v. Palisi, 308 N.Y. 293, 125 N.E.2d 575 (1955) (greater caution
                  required of driver where children are known to be playing)

                  cf. Schwartz v. Petfield, 283 A.D.2d 845, 128 N.Y.S.2d 338 (1954) (truck
                  driver required to exercise caution commensurate with his knowledge of
                  children frequenting the area)

                  PJI 2:11


IV.   INCOMPETENCY AND EVIDENTIARY ISSUES AT TRIAL

      CPLR 4519 - Dead Man=s Statute

           When death or mental illness has sealed the lips of one party to a transaction,
            the Dead Man=s Statute seals the lips of the other party. Conversations or
            transactions between a party and an incompetent can only be proved through
           documentary evidence or testimony from disinterested witnesses, not from
           purported admissions made by the party who has since become incompetent.
           Such testimony is presumed unworthy as a matter of law.



                                            6
                Major exceptions to the rule.

                        i.      Vehicular, Aircraft and Boating Accidents.
                                In negligence suits arising out of vehicular, aircraft or
                                boating accidents, the parties to the litigation can
                                testify to the facts of the accident even though one or
                                more parties has died or is incompetent. Nonetheless, the
                                parties are proscribed from testifying as to actual
                                conversations with the deceased or incompetent.
                                CPLR 4519.

                        ii.     Deposition Testimony
                                Deposition testimony concerning transactions with
                                an incompetent who was competent at the time of
                                the deposition and participated therein remain
                                admissible at the time of trial.

                                Siegel v. Waldbaums, 59 A.D.2d 555, 397 N.Y.S. 144
                                (2d Dept. 1977) (pre-trial deposition of interested
                                party was admissible at trial against decedent=s estate
                                because decedent had attended deposition and had
                                participated).

                                In Re: Estate of Mead, 129 A.D.2d 1008, 514
                                N.Y.S.2d 581 (4th Dept. 1987), appl. den., 70 N.Y.2d 609,
                                522 N.Y.S.2d 109 (1987) (pre-trial testimony of interested
                                party was inadmissible because although the decedent was
                                alive at the time of the deposition, he was confined to a
                                nursing home).

                        iii.    Waiver of Protection
                                The Dead Man=s Statute is waived at trial (1) if there is a
                                failure timely interpose an objection to the testimony or
                                (2) if the door is opened by the protected party examining
                                the disqualified witness about the transaction or
                                communication with the incompetent, or (3) if the protected
                                party (for example the guardian) testifies himself about a
                                transaction or communication with the deceased or
                                mentally ill person.

V.   PROVING PAIN AND SUFFERING OF AN INCOMPETENT PLAINTIFF

         Even though an incompetent plaintiff may not fully appreciate the nature of
         his/her suffering or be able to verbalize his/her pain, a jury may properly consider
         pain and suffering as an element of damages.

                Ledogar III v. Giordano, 122 A.D.2d 834, 505 N.Y.S.2d 899 (2d Dept.

                                           7
               1986) ( autistic child can recover for pain and suffering and loss of
               enjoyment of life although the child may not be able to fully
               appreciate the consequences of his injury)

               Tinnerholm v. Parke Davis & Co., 411 F.2d 48 (2d Cir. 1969) (brain
               injured infant with no cognizance of his own tragic condition still entitled
               to pain and suffering damages).


VI.   MISCELLANEOUS COMPETENCY ISSUES IN LITIGATION

          a.   CPLR 309 - Personal service upon a person judicially declared to be
               incompetent must be made by personally serving the committee/guardian.
               The court may dispense with service upon the incompetent.

          b.   CPLR 1203 - No judgment of default may be entered against a person
               judicially declared incompetent unless 20 days have expired since the
               appointment of a Guardian Ad Litem for that incompetent.

          c.   CPLR 1205 - A judicially declared incompetent or a person for whom
               a Guardian Ad Litem has been appointed, as well as the representative
               of the incompetent, will not be liable for statutory costs unless the court
               specifically orders otherwise.

                                              MICHAEL G. GLASS
                                              Rappaport, Glass, Greene & Levine, LLP
                                              445 Broad Hollow Road
                                              Melville, New York 11747
                                              631-293-2300
                                              mglass@rapplaw.com




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