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LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD.

The Second Department determined plaintiff’s lawsuit should not have been dismissed on the ground he was severely mentally retarded. Plaintiff had not been judicially declared incompetent. Supreme Court should have held a hearing about the appointment of a guardian ad litem to aid plaintiff:

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The plaintiff, who has never been judicially declared incompetent, commenced this action to recover damages for personal injuries. By way of background information, he alleged, inter alia, that he previously had been diagnosed as “severely mentally retarded,” that he receives ongoing medical and psychiatric treatment at a residential facility for the developmentally disabled, and that he is entirely dependent on others for his care. Based on these allegations, the defendants separately moved pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against each of them on the ground that the plaintiff lacked the legal capacity to sue. The Supreme Court granted the motions.

An individual who is of unsound mind, but who has not been judicially declared incompetent, may sue or be sued in the same manner as any other person… . Therefore, the Supreme Court erred in directing summary dismissal of the complaint based upon the plaintiff’s alleged lack of mental capacity. Rather, since the plaintiff may require the assistance of a guardian ad litem to protect his interests, the court should have conducted a hearing to determine whether a guardian should be appointed for the plaintiff pursuant to CPLR 1201 … . Piggott v Lifespire, Inc., 2017 NY Slip Op 02686, 2nd Dept 4-5-17

 

CIVIL PROCEDURE (LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/MENTAL RETARDATION (CIVIL PROCEDURE, LAWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)/GUARDIANS (CIVIL PROCEDURE, MENTAL RETARDATION, AWSUIT SHOULD NOT HAVE BEEN DISMISSED BASED ON THE DIAGNOSIS PLAINTIFF WAS SEVERELY MENTALLY RETARDED, HEARING ABOUT APPOINTMENT OF A GUARDIAN AD LITEM SHOULD HAVE BEEN HELD)

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BY THE TERMS OF THE MANAGING AGENT’S CONTRACT WITH THE COOPERATIVE, THE MANAGING AGENT DID NOT FULLY ASSUME THE DUTY TO MAINTAIN THE COOPERATIVE PREMISES SUCH THAT THE AGENT WOULD BE LIABLE FOR PLAINTIFF’S SLIP AND FALL ON THE PREMISES; THE MANAGING AGENT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

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