New York State Court of Claims

New York State Court of Claims

DUTCHER v. THE STATE OF NEW YORK, #2002-013-035, Claim No. 101397, Motion No. M-65469


Application for appointment of a guardian ad litem is denied and counsel's motion for permission to withdraw is granted where the Court has no direct evidence that Claimant is incapable of handling her own affairs and where there has been an absolute breakdown of communication between Claimant and her attorney.

Case Information

JOAN DUTCHER, Individually and as Administratrix of the Goods, Chattels and Credits of ROBERT FREDERICK DUTCHER
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On August 7, 2002, the following papers were read and oral argument was heard on motion of counsel for the Claimant for an order appointing a guardian ad litem for his client or, alternatively, allowing counsel to withdraw as Claimant's representative:
  1. Notice of Motion and Supporting Affirmation of Michael J. Kelly, Esq., with Annexed Exhibits (Kelly Affirmation)
  1. Reply Affirmation of Thomas G. Ramsay, Esq. (Ramsay Affirmation)
  1. Affirmation in Response of Michael J. Kelly, Esq. (Kelly responsive Affirmation)
  1. Sur Reply Affirmation of Thomas G. Ramsay, Esq. (Ramsay Sur Reply)
  1. Filed Papers: Claim; Answer
This action arose from a November 25, 1997 automobile accident in which Claimant, Joan Dutcher, was injured and her infant son killed. The accident allegedly occurred when a vehicle owned by the New York State Department of Correctional Services (DOCS) and driven by a DOCS employee failed to yield at a stop sign and struck the Dutcher vehicle. In March 1998, Claimant was issued Letters of Administration, appointing her Administratrix of her son's estate.

In December 1997, Claimant retained counsel to represent her and, later, her son's estate. The claim, filed on November 12, 1999, sets forth four causes of action: (1) wrongful death of the infant decedent; (2) conscious pain and suffering of the infant decedent; (3) Claimant's emotional distress arising from the "zone of danger," and (4) Claimant's physical injury. At a conference held in October 2000, the claim was bifurcated, a scheduling order was issued, and counsel for Claimant was directed to file her proposed motion for partial summary judgment on the issue of liability so that it would be returnable November 15, 2000.[1]

After the scheduling conference, communications between Claimant and her counsel became more problematic. She was discouraged that there would be no immediate trial and, according to counsel, "it became very difficult for [counsel] to obtain the cooperation of the claimant to any significant extent" (Kelly Affirmation, ¶26). In the course of trying to prepare the summary judgment motion, counsel attempted on a number of occasions to solicit Claimant's assistance and cooperation, all without success.

In December 2000, counsel received a letter from Claimant in which she stated that she wished the sole focus of the litigation to be on the causes of action relating to her son's injuries and death, in effect demanding that he drop the third and possibly the fourth causes of action (id., Exhibit D). She also expressed dissatisfaction with his handling of the case. At that point counsel felt that he was faced with an ethical dilemma, for in his opinion, the third cause of action is extremely viable and represents perhaps Claimant's best chance of a significant recovery, which would make discontinuing that portion of the claim a disservice to Claimant. Furthermore, it is counsel's honestly held opinion that his client is no longer able to participate in a meaningful manner in the prosecution of this claim. Whatever the accuracy of that belief, she has in fact refused to communicate with him since sending the December 2000 letter (id., ¶51). In addition, in May 2002, she filed a complaint against him with the New York State Attorney Grievance Committee. (Counsel has since been absolved of any wrongdoing in connection with his representation of Claimant.)

It appears that counsel has made every effort to resolve this dilemma in a fashion that best preserves his client's rights and options, and one must respect his reluctance to blindly obey his client by discontinuing a cause of action when he feels that it is not in her best interest to do so. Counsel has consulted with this Court, with the New York State Grievance Committee, and with the Wyoming County Surrogate's Court in an effort to fashion a course of action that will both protect his client and permit him either to proceed with the litigation or to withdraw as her representative. He has also discussed with Claimant's parents the possibility of their stepping forward and obtaining guardianship over their daughter or acting as her guardian ad litem in the prosecution of this action, but they have declined to become involved in that fashion. For more than a year, counsel has explored all options that might be available to safeguard his client's rights and, at the same time, to get himself out of an impossibly awkward situation.

By this motion, counsel seeks to have the Court either appoint a guardian ad litem who can represent Claimant and with whom he can work in the prosecution of this action or, alternatively, to permit him to withdraw as Claimant's attorney. Making this motion is the proper course of action, for an attorney who believes that his or her adult client is "apparently incompetent" is required to take such a step (Brewster v John Hancock Mut. Life Ins. Co., 280 AD2d 300), and a party's attorney may be considered the party's "friend" for the purpose of an application for a guardian ad litem under CPLR 1202 (Matter of Doe, 184 Misc 2d 519).

Pursuant to Court of Claims Act §9(11), this Court and its judges have "all of the powers necessary to carry out properly the jurisdiction granted and the duties imposed by this act," including the power to appoint a guardian ad litem to prosecute the claim of a person who is an infant or who is not a judicially declared incompetent (Matter of Lugo, 7 NY2d 939; Hawley v State of New York, 28 Misc 2d 150; see also, CPLR 1202 ["The court in which an action is triable may appoint a guardian ad litem at any stage in the action..."]).[2] Typically, at least in this Court, the application for the appointment of a guardian ad litem is made by a friend or family member who is seeking to be appointed, with the agreement, express or implicit, of the infant or incapacitated person (see, e.g., Schenk v State of New York, Ct Cl, #2001-005-504 [Motion No. M-60539], March 7, 2001, Corbett, J.).[3] In such situations, no compensation is required for the guardian ad litem.

Where, however, a court appoints someone unrelated to represent a party to the action to serve in this capacity, CPLR 1204 provides that "reasonable compensation" may be allowed. The compensation is to be paid by another party, or from any recovery had on behalf of the person represented, or from the property of the represented person (see also, 22 NYCRR 36.4). Neither my own research, nor consultation with the Chief Clerk of this Court, has revealed any precedent or authority for the Court of Claims to direct payment of such fees from any of the listed sources. Indeed, there may well be a constitutional bar to requiring the State to pay such costs (but see, Perales v Cuttita, 127 AD2d 960 [the State was directed to pay fees in a proceeding that had been made necessary by State action, as application for such fee was not "a claim against the State" and thus not barred by sovereign immunity]).

Even more troubling than this thorny issue of compensation for an appointed guardian ad litem, however, is the question of what right or authority this, or any, court would have to appoint a guardian ad litem for someone who has not asked for such assistance and whose need for such assistance the Court has had no opportunity to judge.
The courts have long held... and continue to hold that a person of unsound mind but not judicially declared incompetent, nor determined to be incapacitated under M.H.L. §81.02, may sue or be sued in the same manner as any ordinary member of the community.

(4 Weinstein-Korn-Miller, NYCiv Prac ¶1201.07, citing to Piasecki v Rashib, 203 AD2d 443; Matter of Huber v Mones, 235 AD2d 421; see also, Sengstack v Sengstack, 4 NY2d 502; Provenzano v State of New York, Ct Cl, #2000-016-101 [Claim No. 99202 - Motion Nos. M-62081 and CM-62343], Nov. 30, 2000, Marin, J.).

Unless and until the Court is presented with facts -- such as information that the party in question is in a coma or hospitalized -- from which lack of capacity must be presumed, it would appear that a hearing must be conducted to assess the party's mental state (see, Sarfaty v Sarfaty, 83 AD2d 748; Palaganas v D.R.C. Industries, 64 AD2d 594; Vinokur v Balzaretti, 62 AD2d 990; Hughes v Physicians Hosp., 149 Misc 2d 661). Accepting, strictly for the sake of argument, that this Court would have the power to direct such a hearing, the rationale and justification for doing so, particularly in the instant case, is woefully lacking.

The Court of Claims does not have jurisdiction to entertain a proceeding for the appointment of a guardian or committee (Court of Claims Act §9; Mental Hygiene Law, Article 81; Fales v State of New York, 108 Misc 2d 636, supra). If Claimant were in fact incapable of handling her affairs, a guardian would have to be appointed (see, footnote 2). Any determination at this juncture, after a hearing conducted for the purpose of appointing a guardian ad litem, would differ little in substance from the determination, following a hearing, that would be made in an Article 81 proceeding. In addition, in this particular case, Claimant's mental condition has been placed in issue by the third cause of action, the claim for emotional distress resulting from the accident and her son's death. Consequently, seeking a determination of her mental state at this juncture would, in my view, impermissibly, but unavoidably, involve this Court in a "back door" assessment of the very facts that may be relevant to its ultimate determination of liability.

Perhaps such involvement is inevitable, but at this time, despite the sincerity of counsel's beliefs regarding his client's capacity, I have no first-hand knowledge of the matter and, thus, at present have no legitimate reason to consider or treat her differently than any ordinary member of the community. If there were no question of her competency and I were presented with the same evidence of a complete breakdown in the working relationship between Claimant and her counsel, I would without hesitation grant the motion to withdraw and allow Claimant an opportunity to proceed as her own representative.[4]

In an effort to discuss the matter with Claimant before making any ruling, I required that she be personally served with the motion papers and thus notified of her right to appear at oral argument. Service was effected and, in addition, Claimant's parents were informed by counsel of the motion and its significance. On the day set for oral argument, however, Claimant did not appear. It may be that she did not understand the situation or the effect on her if the motion is granted, but it could also be that she simply has no objection to having counsel withdraw, a position consistent with that expressed in her last communication to her counsel and her actions since that time.

Counsel's primary concern about Claimant's ability to represent her own interests arises from her determination to discontinue a cause of action that he believes is viable. While his reluctance to take such a step without good reason is fully understandable, it is nevertheless not a certain sign of lack of ability for a person to elect to forego litigation that, however viable, may be embarrassing, distressing or distasteful. By granting this motion, the "stalemate" between Claimant and her attorney will be ended, and she will be responsible for either prosecuting her own claim or retaining another attorney to represent her. In either event, there will be an opportunity in the future for this Court, or perhaps for Surrogate's Court, to intervene and take appropriate steps if the need becomes apparent.

For the reasons set forth above, the motion is granted to the extent that Claimant's counsel is permitted to withdraw. Counsel is directed to provide the complete file of his litigation to Claimant and to provide the Court with the address at which service was effected on Claimant, together with the address of the parent with whom she formerly resided, within twenty (20) days of the date this decision and order is file stamped. Counsel may also take any other steps to which he is entitled with respect to work that he has performed on this file in the past.

The Chief Clerk is directed to amend the Court's records to reflect that Claimant Joan Dutcher is appearing as her own representative. All action in this claim is stayed for ninety (90) days from the date of filing of this decision and order to give Claimant an opportunity to retain new counsel (CPLR 321[c]). At the expiration of that time, the Court will set this matter down for a scheduling conference, at which time Claimant's new counsel shall appear on her behalf, or in the alternative, Claimant will appear on her own behalf. Failure to do so may result in an order of dismissal.

October 18, 2002
Rochester, New York

Judge of the Court of Claims

A separate action commenced in Supreme Court against the driver of the State vehicle was subsequently discontinued upon stipulation of the parties.
I note that while a guardian ad litem may prosecute an action on behalf of an unadjudicated incompetent, the person serving in that capacity does not have the power to apply for court approval of a settlement of such action or to receive any award that may be made (CPLR 1206, 1207; Tudorov v Collazo, 215 AD2d 750; Fales v State of New York, 108 Misc 2d 636).
This and other Court of Claims decisions may be found at decisions.
Whether she may, in her capacity as administratrix, act as the legal representative of that portion of the claim brought on behalf of her son's estate or whether she must retain new counsel is a matter to be determined by the Wyoming County Surrogate's Court.