CAPACITY AND COMPETENCE IN LITIGATION
By: Michael G. Glass
Rappaport, Glass, Green & Levine, LLP
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
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)
$ 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
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
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
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
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
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
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
$ 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
$ 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.
Harvey v. Mazal Partners, 79 N.Y.2d 218, 581 N.Y.S.2d
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)
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)
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.
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.
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
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
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.
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