Opinion
December 21, 1965
Order, entered November 10, 1965, unanimously reversed, on the law, with $30 costs and disbursements to the defendant-appellant, and motion by defendant to vacate order of Special Term, rendered September 22, 1965, appointing a guardian ad litem for the defendant with direction for service of summons and complaint upon him, granted, with $10 costs. It was improper to appoint the guardian ad litem on application by the attorneys for the plaintiff without notice to the defendant, an adult (CPLR 1202, subd. [b]), and without satisfactory proof that the defendant, though allegedly mentally ill, was incapable of adequately protecting his rights. (CPLR 1201; see, further, Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 321.03, 1201.05; Sengstack v. Sengstack, 4 N.Y.2d 502; Anonymous v. Anonymous, 3 A.D.2d 590.) Furthermore, in determining whether the alleged incapacity of defendant warranted the appointment of a guardian ad litem, before granting such relief, under the circumstances in this case, the court should have found on a proper record that it was not feasible to institute proceedings for the appointment of a committee of the property of the defendant. Anything less was a violation of the due process rights of the defendant, because the procedural requirements of incompetency proceedings would have been by-passed.
Concur — Botein, P.J., Breitel, Stevens, Eager and Steuer, JJ.