DUTCHER v. THE STATE OF NEW YORK, #2002-013-035, Claim No. 101397, Motion No.
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
JOAN DUTCHER, Individually and as Administratrix of the Goods, Chattels and Credits of ROBERT FREDERICK DUTCHER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
MICHAEL J. KELLY, ESQ.
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
October 18, 2002
See also (multicaptioned
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
Notice of Motion and Supporting Affirmation of Michael J. Kelly, Esq., with
Annexed Exhibits (Kelly Affirmation)
Reply Affirmation of Thomas G. Ramsay, Esq. (Ramsay Affirmation)
Affirmation in Response of Michael J. Kelly, Esq. (Kelly responsive
Sur Reply Affirmation of Thomas G. Ramsay, Esq. (Ramsay Sur Reply)
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
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.
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
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
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..."]).
Typically, at least in
this Court, the application for the appointment of a guardian ad litem
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,
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
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
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.
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of
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
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.