DECISION/ORDERRespondent Jose Norat’s motion to vacate this court’s decision and judgment after trial pursuant to Section 4404(b) of the CPLR, and for other relief, is granted to the extent set forth below.Section 44404(b) provides that after a trial in which a jury was not required, “upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.” The statute gives the trial court broad discretion to set aside its own judgments, and sets forth no standards for or limitations on the court’s exercise of that discretion.The goal is to ensure that litigants receive a fair trial and that justice is done. Altimari v. Meisser, 23 AD 2d 672 (2nd Dept. 1965). If a party has been denied a fair trial, the court should order a new trial in the interests of justice. 12-16 Arden Assocs v. Vasquez, 168 Misc. 2d 475, 479 (Civ. Ct. NY Co. 1995)(Gische, J.), citing Rohring v. City of Niagara Falls, 192 AD 2d 228 (4th Dept. 1993); Scala v. Greyhound Lines, Inc., 149 AD 2d 327 (1st Dept. 1989).It is true, as petitioner here argues, that a party seeking relief under Section 4404(b) must ordinarily move for relief within 15 days of the entry of judgment. CPLR Section 4405. The statute places no time limits, though, on the court’s right to grant relief on its own initiative so long as an appeal has not been submitted or argued, Id., and a late motion may be permitted by the court for good cause shown. Mora v. Cassino, 196 Misc. 2d 403, 404 (Civ. Ct. NY Co. 2002)(Bedford, J.), citing Pioli v. Morgan Guaranty Trust Co of NY, 199 AD 2d 144 (1st Dept. 1993).This court is persuaded, based on the evidence submitted on this motion, none of it contradicted by petitioner, that Jose Norat did not receive a fair trial in this case, because of his severe mental illness, combined with and exacerbated by his trial counsel’s failure to bring his psychiatric condition to the attention of the court at any time during the eighteen months between the commencement of the proceeding and the end of the trial.With the assistance of his new counsel, respondent has established that he suffers, and has suffered for decades, from severe mental illness. Medical reports and treating records submitted with the moving papers establish that respondent has been diagnosed in recent years with bipolar I disorder, major depressive disorder, post-traumatic stress disorder, and panic disorder with agoraphobic features. He is described by a treating doctor as having “extreme emotional reactivity, extreme mood lability, and can decompensate while facing minor stress and pressure.” Another doctor noted pressured speech, racing thoughts, persecutory thought content, unstable mood, impaired judgment and limited insight.During respondent’s six years of military service, which included a combat tour during Desert Storm, respondent was hospitalized for psychiatric illness four times. The first of these hospitalizations occurred when he was 19 years old and followed a suicide attempt. In more recent years there have been two more psychiatric hospitalizations. Doctors have prescribed at lease six different psycho-active medications for Mr. Norat in recent years.Respondent’s descriptions of his interactions with his prior counsel both before and during the trial make it clear that respondent’s psychiatric illness clouded his relationship with counsel and made it virtually impossible for attorney and client to establish any collaborative relationship. The affirmation of respondent’s new counsel describes Mr. Norat as paranoid, hyperactive, disorganized and angry, with diminished judgment and insight.While respondent’s condition and symptoms were, to some extent, visible to the court, and are, to some extent, reflected in the respondent’s behavior on the record during the trial, respondent’s trial counsel did not raise respondent’s condition as an issue, and the court was reluctant to intrude on counsel’s prerogatives. Mr. Norat was fortunate to find his way, after trial, to Mobilization for Justice Inc., a legal services organization with, among other things, a long-established expertise at representing people with mental illness. This court is fortunate, as well, to have an opportunity to right an obvious wrong.Mr. Norat’s motion was made December 28, 2018, 29 days after the issuance of the decision and judgment after trial, and new counsel has established abundant good cause for the short delay in bringing on the motion, including the difficulty of obtaining information and documents from prior counsel and the court, and the additional challenge of working with a client with disabilities while collecting extensive documentation to support the motion.Respondent’s affidavit dated December 27, 2018, combined with the affirmation of John Bart of the same date, makes crystal clear that respondent is an adult incapable of adequately prosecuting or defending his rights, for whom a guardian ad litem must be appointed under Article 12 of the CPLR. It is the public policy of this state, and of this court, to protect vigorously the rights of the mentally ill. Vinokur v. Balzareth, 62 AD 2d 990 (2d Dept. 1978). The court has an obligation to evaluate a party’s need for a guardian ad litem even when that party is represented by counsel. Id. The court may appoint a guardian ad litem at any stage of the proceeding, on its own initiative or on the motion of any party or a friend or relative of the individual at issue. CPLR Section 1201(a). The Appellate Term in this Department has held that where a guardian ad litem should have been appointed and was not, the resulting judgment must be vacated, even when entered after a jury trial at which the respondent was represented by counsel. Kalimian v. Driscoll, 7/20/92 NYLJ 23, col 4 (AT 1st Dept.). See also Kushner v. Mollin, 151 AD 2d 649, 650 (2d Dept. 1988) (Court has an obligation to investigate a party’s need for a guardian ad litem even when the party is represented by counsel.); 466 Assocs. v. Murray, 151 Misc. 2d 472 (Civ. Ct. NY Co. 1991)(Court may appoint a guardian ad litem even over the objection of the affected party’s counsel.)Although no more is required to warrant relief, the court notes two additional facts that should be considered here. First, the substantive law standard for succession rights, the central substantive issue in this case, is different for a person with a disability than for one without. An individual with a disability is required to show co-occupancy with the tenant of record for one year in order to be entitled to succession, while a person who is neither disabled nor elderly must show a two year co-occupancy. 9 NYCRR Section 2523.5(b)(1).Second, in a few short weeks, new counsel for respondent has been able to gather significant additional documentation supporting Mr. Norat’s substantive claim. While no particular document is conclusive, the new documents, taken together, raise a substantial likelihood that a different result might be reached after a new trial.For all of the foregoing reasons, the Decision/Order and judgment dated November 26, 2018, and the warrant issued December 11, 2018, are vacated. The court will appoint a guardian ad litem for the respondent, from its list of eligible persons. The appointment will be by separate order, as required by the court’s administrative procedures. The appointing order will be mailed to counsel for both parties.So much of the motion as seeks summary judgment is denied. Counsel for both parties and the GAL are directed to appear in Part P, Room 855, on May 9, 2019 at 9:30 a.m. to select a date for a new trial. All issues of use and occupancy and discovery raised by counsel will be addressed by the court at that time.Dated: 3/27/19
