On this motion, Digna Caraballo moves for an order appointing her Guardian Ad
Litem for her daughter, Antonia Maso, for the purpose of litigating this claim
against the State of New York. Defendant opposes the motion and cross-moves,
pre-answer, for an order dismissing the claim for lack of jurisdiction.
The claim, filed August 11, 2008, alleges as follows:
1. That on August 9, 2001, Antonia Maso, an inmate in the State correctional
system, was committed to Central New York Psychiatric Center upon the finding of
Supreme Court Justice Norman I. Siegel that she was “mentally ill and a
proper subject for custody and treatment in a State Hospital for the mentally
ill” (Claim, Exhibit A).
2. That the order of Justice Siegel has “never been rescinded and
remains in full force and effect” (although it is clear that Maso was
released from the psychiatric hospital some time between August 2001 and
3. That on September 11, 2004, while in State custody at Bedford Hills
Correctional Facility, Maso attempted to commit suicide by cutting herself,
requiring in excess of 100 sutures.
4. That the attempted suicide was the result of negligence on the part of
5. That Maso was under a disability at the time the claim accrued and remains
under such disability.
The claim also states that, upon its filing, her mother, Digna Caraballo will
move the court for appointment as guardian ad litem for her daughter, which is
the relief sought on this motion.
In support of the motion, Digna Caraballo alleges that her daughter’s
2001 commitment to the psychiatric hospital was the result of a suicide attempt
at that time. She claims her daughter was “mentally ill” prior to
and at the time of the subject incident and remains so to date. She asks that
the court appoint her guardian ad litem to prosecute this claim and requests
that the filing of a bond be waived.
Defendant opposes the motion and cross-moves to dismiss the claim for lack of
jurisdiction arising from alleged late service and filing of the claim.
Defendant notes that the claim accrued on September 11, 2004 and that it was not
served and filed until August 2008, well beyond the 90-day period set forth in
Court of Claims Act §10(3).
Two things are clear from the outset: (1) that the claim was served and filed
more than 90 days after its accrual as required by Court of Claims Act §
10(3), and (2) that the August 2001 order finding claimant to be “mentally
ill and a proper subject for custody and treatment in a State Hospital for the
mentally ill” mandates the conclusion that claimant was under a
“legal disability” within the meaning of Court of Claims Act §
10(5) at that time (Boland v State of New York, 30 NY2d 337 ;
Bowles v State of New York, 208 AD2d 440 [1st Dept 1994]; Frank v
State of New York, 21 Misc 3d 387 ; Muller v State of New York,
179 Misc 2d 980 ). However, the issue here is whether claimant was under
a legal disability when the claim accrued on September 11, 2004 and the
submitted papers provide an insufficient basis for such a determination. All
that is before the court are the unsupported allegations of claimant’s
counsel and her mother that claimant continues to be mentally ill and that the
2001 order has “never been rescinded or vacated and hence remains in full
force and effect” (affirmation in support of motion, ¶ 3). To this
court’s knowledge, a supreme court order vacating or rescinding an order
of commitment is not necessary for a person to be released from involuntary
psychiatric treatment. In fact, such release occurs as the result of decisions
made by the patient’s doctors. The question of when claimant’s
disability was removed cannot be addressed based on the information currently
before the court.
Neither party has submitted any treatment records, with the result that both
parties have failed to meet their respective burdens of proof on these motions.
With respect to defendant’s jurisdictional argument, there is sufficient
information before the court to raise a reasonable possibility that claimant may
have been under a legal disability on the date the claim accrued and these
allegations are taken as true for the purpose of a motion to dismiss. Thus, the
court must deny the motion to dismiss at this time. Nevertheless, since the
probative evidence before the court is insufficient to determine whether §
10(5) applies – i.e., whether claimant was under a legal disability on
September 11, 2004 and whether the claim was served and filed within two years
after the removal of such disability – defendant is free to raise the
jurisdictional defense in its answer and revisit the issue with a proper
As to the application of Digna Caraballo to be appointed guardian ad litem
pursuant to CPLR 1202, such relief requires a finding that claimant is incapable
of “understanding the proceedings, defending her rights, and assisting
counsel” (Matter of Barbara Anne B., 51 AD3d 1018 [2d Dept 2008];
see also Rapoport v Cambridge Development LLC, 51 AD3d 530 [1st Dept
2008]; Matter of Philip R., 293 AD2d 547 [2d Dept 2002]). The only
factual allegations before the court are that claimant was involuntarily
committed to a psychiatric hospital in 2001 and that she attempted suicide in
2004. These facts, without more, are clearly an insufficient predicate for the
relief sought. There is nothing before the court as to claimant’s current
Accordingly, both the motion and cross-motion are denied.
Additionally, the court sua sponte amends the caption to remove the
reference to Digna Caraballo as proposed guardian ad litem