Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s order to show cause to vacate the August 21, 2018 stipulation: Papers Numbered Notice of Motion & Affidavits Annexed Order to Show Cause and Affidavits Annexed 1 Answering Affidavits 3 Replying Affidavits 4 Other Notice of Cross Motion 2 Other Post-Hearing Memo of Law 5 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this hearing is as follows: Relevant Procedural History In this licensee holdover proceeding, Golden Horse Realty LLC (“petitioner”) served Jian Xiong Tan (“respondent”) with a Notice to Quit dated April 1, 2017 seeking to recover Apartment 15, located at 121 Henry Street, New York, New York (“subject premises”). The Notice to Quit asserts that Mei Xing Tan, the former tenant of record vacated the subject premises on or about August 31, 2016, and that any license granted to respondent to occupy the premises, has expired by operation of law. The Notice to Quit further states that if respondent fails to vacate the subject premises by April 17, 2017, the landlord will commence a summary proceeding against him to regain possession of the premises. Upon expiration of the Notice to Quit, petitioner served respondent with a Notice of Petition and Petition dated April 27, 2017. Respondent retained counsel and filed a Verified Answer, Defenses and Counter-Claims dated July 10, 2017. Respondent asserts two defenses, three affirmative defenses, and three counterclaims which, among other things, include a succession defense. Respondent asserts that he is the son of Mei Xing Tan and that he co-resided with his mother for the requisite time period in order to obtain succession rights. Petitioner moved by Notice of Motion dated November 19, 2017, for leave to conduct discovery. On January 2, 2018, respondent relieved his attorneys, Mobilization For Justice, Inc. of representation and sought to proceed unrepresented. Respondent’s case was then referred to Adult Protective Services (“APS”). In July 2018, APS closed respondent’s case stating he has sufficient mental capacity to proceed in this case. On July 17, 2018, the court rendered a decision, wherein respondent was instructed to respond to petitioner’s motion for discovery. The court notes in its order, that respondent was adamant about not responding to the motion and that he asserts he would be moving out of the subject premises in four months. The court adjourned the discovery motion to August 21, 2018, for all purposes including resolution of the motion, settlement, or trial. On August 21, 2018, respondent appeared in court unrepresented and consented to a final judgment of possession, wherein he agreed he would vacate the subject premises February 28, 2019. Respondent withdrew all of his claims and defenses including his defense of succession rights. In September 2018, respondent’s brother sought to retain new counsel for him with Manhattan Legal Services. On September 18, 2018, respondent, through counsel, moved by order to show cause to vacate the pro se stipulation of settlement dated August 21, 2018, to vacate the judgment and warrant entered therein, and to appoint a Guardian Ad Litem for respondent Jian Tan. Petitioner cross moved by Notice of Cross Motion for an independent medical examination of respondent, pursuant to CPLR § 3121. The matter was adjourned numerous times for a hearing regarding vacatur of the August 21, 2018 stipulation, vacatur of the judgment and warrant, and for the appointment of a GAL for respondent. The hearing was held from January 22, 2019 through June 4, 2019. Hearing On January 22, 2019, Mr. Dustin Chien (“Chien”) testified on behalf of respondent. Chien informed the court that he is a licensed social worker employed by Gouverneur Hospital. Chien studied psychology at NYU for two years until 2012, then he continued his social work training at Hunter College until 2016 and he interned at Gouverneur Hospital. As an intern, his job was to screen new patients, oversee the discharge of patients, and triage new cases. He had a case load of 12-14 cases. Mr. Chien also speaks Mandarin and is able to screen Mandarin speaking patients. Since graduating, Mr. Chien was hired at Gouverneur Hospital as a social worker level 2. He has a case load of 40-60 patients of which 10-20 of the patients are diagnosed as paranoid schizophrenic. Chien testified that he was familiar with respondent, Jian Tan. He first met respondent when he was an intern and he currently works with him as a staff social worker. Chien testified that respondent has an individual therapist and that he has weekly and/or bi-weekly meetings with this therapist since 2017. Chien testified that he has worked together with respondent and his therapist on his case. Chien testified that he had been working with respondent for the 3 to 5 months prior to the stipulation agreement. During this time period, he sought information from respondent to determine if he was having delusions. Chien testified that respondent had a treatment plan, and he was not following the plan. Respondent had not taken his medicine since June 2018. Upon learning this information, Chien asserts that he had to do a risk assessment on respondent. The risk assessment includes finding out whether respondent can properly care for his daily needs, whether he poses a danger to himself, and whether he poses a danger to others. After his risk assessment, it was Chien’s belief that respondent was having difficultly managing himself. It was also his belief that respondent has difficultly understanding money and how to manage it. Respondent receives Supplement Security Insurance (“SSI”) for his illness. Chien testified that respondent has been hospitalized six times in the past for psychiatric episodes. In the September 2018 report, the psychiatrist was seeing him bi-weekly. Chien testified that respondent was having delusions regarding an intruder in his apartment and that is when respondent started talking about returning to China. Chien points out that respondent does not know anyone in China and that this was not well thought out. Chien’s assessment was that respondent was not perceiving reality well and that he was not able to properly advocate for himself. On cross-examination, Mr. Chien reiterated that respondent was unable to advocate for himself, that in August 2018 he was not taking his medication, that he was having paranoid delusions, and that he has been diagnosed as paranoid schizophrenic. Chien asserts that respondent’s former counsel asked him to prepare the September 2018 letter for the court. Chien further asserts that he met with respondent two weeks after court and his letter was based on respondent’s failure to take his medication, his paranoid delusions, and his lack of sleep (he was not sleeping well at the time). On March 29, 2019, Mr. Jian Tan (“Tan”), respondent, testified on his own behalf that he has lived at 121 Henry Street, New York, New York Apartment #15 since 1991, when he came to the United States from China with his mother and younger brother. He states that he now lives by himself in the apartment. Tan testified that he does take medication for his psychological problems. His medication was prescribed by Dr. Yip a couple of years ago. Tan testified that he stopped taking his medication for a few months, and that he does not recall when he stopped taking the medication. He states that he stopped taking his medication because he wanted to see what would happen. Respondent could not remember if he was taking his medication when he was in court in August 2018 because it was too long ago, but he is currently taking his medication. Respondent testified that he signed the stipulation in the other courtroom with the interpreter and the landlord’s attorney. He testified that the agreement was interpreted but not explained. He asserts that he did not understand what was happening and that even though he said he was going to move to China, he thought he could stay in the apartment as long as he wanted. He further asserts that at the time he signed the stipulation agreement that he had the idea to move to China, but now he wants to stay in the United States. Tan could not remember when he decided he wanted to stay in the United States. He testified that signing the stipulation agreement was not important to him because he is not a lawyer and does not understand the laws. He stated the stipulation was read to him but he did not understand it because he didn’t have an attorney. He doesn’t remember anything other than the interpreter and the landlord’s attorney. Tan states that he did not use an attorney because he thought the case was ending, and he “didn’t want the court to spend too much on his case.” He further testified that the reason he appeared in court was because the landlord shut off the gas and that was his understanding of this case and that he has no where else to live other than the apartment. On cross-examination, Tan testified that Dr. Yip is his psychiatrist and that he does not remember the names of the drugs prescribed to him. Tan testified that when you stop taking your medication that there are more things to think about than when you are on your medication. He could also not recall whether his mother was in court with him that day but that she did come to court with him several times. Tan testified that his understanding of the August 21, 2018 stipulation agreement was that “if I go to China I have to give back the apartment to the landlord.” However, he also believed that if he did not move to China he could stay in the apartment. Tan when asked if he remembered stating that he wanted to move to China and that he did not want to live in the apartment anymore said that he didn’t understand that he had to leave the apartment. Tan testified that he did not remember the judge because August 2018 was so long ago. He did not recall that the current judge was the same judge that allocuted the stipulation to him. He did not remember how many times he appeared before the judge although he had multiple conversations with the judge. His understanding of the case was that he was ineligible to live in the apartment according to the landlord but he believes that he is in fact eligible to live there. In the HP actions he has been involved with he has seen five judges. However, he cannot recall his conversation with this judge or anyone in this proceeding telling him that he may not have enough time to move. In closing statements, respondent seeks to vacate the stipulation because he is a paranoid schizophrenic who entered into the agreement pro se and was not on his medication at the time he signed the agreement. Based on the social worker’s testimony, Tan did not understand what he was doing. Shortly after the agreement was signed, Tan was involuntarily committed. He testified that he did not understand that he had to move by a certain date and that he improvidently gave up his rights. Based on the foregoing, respondent argues that there is good cause to vacate the stipulation and appoint a GAL. Respondent also asks the court to deny petitioner’s cross motion an independent medical examination as it would not provide insight to Tan’s medical state when signed the stipulation. Petitioner’s counsel argues that respondent merely changed his mind and that this is not a case where he did not understand. Petitioner countered that the social worker was unable to testify about what drugs Tan was prescribed and that Tan’s testimony was erratic and inconsistent. Tan testified he knew the landlord wanted him out of the apartment. Petitioner also asked the court to take judicial notice of the HP file wherein Tan commenced an action against the landlord for lack of gas without and attorney or an GAL. Petitioner requests that the court grant its cross-motion for an independent medical examination. Vacatur of Stipulation Agreements It is well settled that stipulations of settlement are favored by the courts and not lightly cast aside. Strict enforcement of stipulations is essential to managing court calendars, efficient dispute resolution and to the integrity of the litigation process Hallock v. State of New York, 64 NY2d 224 (1984). However, courts retain control of their stipulations and may relieve a party from the consequences of a stipulation only where there is sufficient cause to invalidate a contract such as fraud, collusion mistake or accident Matter of Frutiger, 29 NY2d 143, 149-150 [1971]. Current case law supports the court’s discretionary power to relieve parties from the consequences of a stipulation upon such terms as it deems just, if it appears that the stipulation was entered into unadvisedly or it would be inequitable to hold the parties to it. 1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 [App Div 1st Dept 1987]; see also, 1796 Nostrand Ave. LLC v. Gabriel, 47 Misc3d 141 [App Term 2nd Dept 2015]; Park Props Assoc. LP v. Williams, 38 Misc 3d 35, 37 [App Term 2nd Dept 2012]; 126 Bapaz, LLC v. Alamo, 14 Misc 3d 145A [App Term 1st Dept 2007]. Good cause exists to vacate stipulations of settlement when it appears that a party has “inadvertently, unadvisedly or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice” In re Frutiger’s Estate, 29 NY2d 143, 149 (1971), see also, Cabbad v. Melendez, 81 AD2d 626 (2nd Dept, 1981). “Where both parties can be restored to substantially their former position the court, as a general rule, exercises such power if it appears that the stipulation was entered into unadvisedly….” Id at 149. In Cabbad, supra the court vacated a consent judgment based upon a showing of good cause, in addition to demonstration of merit and a reasonable probability of success on the part of the party seeking vacatur. The court found good cause in a holdover proceeding, wherein a non-English speaking tenant consented to a judgment of possession, in the absence of counsel, and the tenant mistakenly believed that the stipulation provided that upon paying the landlord all rent owing, the proceeding would be resolved and she would retain possession of the apartment. Additionally, the court found that the tenant has a meritorious claim that the apartment is still rent controlled, and there is a reasonable probability that she will be successful at trial. Good cause also exists where respondent may suffer from mental illness and did not fully understand the situation or significance of the agreement Genesis Holding LLC v. Watson, 5 Misc3d 127 [1st Dept App Term 2004]. In Genesis Holding the court found that the hearing evidence, supported the court’s findings that respondent, the son of the departed rent controlled tenant, suffers from some form of “mental disability” that warranted the appointment of a guardian ad litem and that prevented him from fully understanding the situation confronting him or the significance of the stipulation, and that the attorney who negotiated and signed the stipulation ostensibly on behalf of both respondents had never spoken to or been retained by respondent. The court held that “[t]he court possesses the discretionary power to relieve parties from the consequences of a stipulation effected during litigation upon such terms as it deems just and, if the circumstances warrant, it may exercise such power if it appears that the stipulation was entered into unadvisedly or that it would be inequitable to hold the parties to it.” (1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 [1987], appeal dismissed 73 NY2d 868 [1989], citing Matter of Frutiger, 29 NY2d 143, 150 [1971].) Standard to Appoint a Guardian Ad Litem Civil Practice Law and Rules (“CPLR”) § 1201 states “[a] person shall appear by his guardian ad litem….if he is an adult incapable of adequately prosecuting or defending his rights.” Additionally, CPLR § 1202 (a) states that “[t]he court in which an action is triable may appoint a guardian at litem at any stage in the action upon its own initiative or upon the motion of….” (1) an infant party if he is more than fourteen years of age; or (2) a relative, friend or a guardian, committee of the property, or conservator; or (3) any other party to the action if a motion has not been made under paragraph on or two within ten days after completion of service (Emphasis added). The procedural and evidentiary standards to appoint a housing court GAL pursuant to CPLR article 12 are minimal. “In New York City, only Supreme Court has the authority to establish an article 81 guardianship [Mental Hygiene Law 81.04] Lower courts, such as the New York City Housing Court, do not have the jurisdiction to appoint an article 81 guardian. Housing court can, however, appoint CPLR article 12 GALs [CPLR § 1202(a)]. The burden of proof to appoint an article 12 guardian is lower than that needed to appoint an article 81 guardian. The burden to appoint an article 81 guardian is ‘clear and convincing evidence’ [Mental Hygiene Law 81.12(a)], as opposed to the mere preponderance of evidence required for an article 12 guardianship. To appoint article 12 guardians, a court need determine only that, based on the state of the record, prospective wards are more likely than not incapable of adequately prosecuting or defending their rights” 1234 Broadway LLC v. Feng Chai Lin, 25 Misc3d 476, 483-484 [Civ Ct NY Co 2009]; see also, New York Life Ins. Co. v. V.K., 184 Misc2d 727, 734 [Civ Ct NY Co 1999]. To appoint an article 12 guardian, the court must find that based on the record, an adult prospective ward is unable to adequately defend themselves in a judicial proceeding. “The nature of the inadequacy is undefined. The ward’s incapacity might be cultural, linguistic, physical, intellectual, or psychological, to name a few” 1234 Broadway LLC v. Feng Chai Lin, 25 Misc. 3d 476, 483-84 [Civ. Ct. 2009]. The court notes that appointing a guardian ad litem does not amount to an adjudication of incompetence (Anonymous v. Anonymous, 3 AD2d 590, 594 [2d Dept 1957]. Determination The court finds herein that respondent has established good cause to vacate the August 21, 2018 agreement. Mr. Chien testified credibly that he has worked with respondent at Gouverneur Hospital since 2012, and that respondent has been diagnosed as paranoid schizophrenic. Notwithstanding this diagnosis, Mr. Chien reports that Tan had not been taking his medication pursuant to his treatment plan for his illness for at least three months prior to the stipulation agreement, that Tan was having delusions, and that it is his assessment of Tan that he was not capable of representing himself. Mr. Tan was represented by counsel prior to the stipulation agreement who served and filed an Answer on his behalf, asserting his succession claim to the apartment. At the time, it appears that without good reason respondent fired his attorney. The first of many irrational decisions respondent made. The court adjourned the matter numerous times and admonished respondent to retain new counsel or to respond to petitioner’s discovery demand. However, respondent consented to a possessory judgment agreeing to vacate the only home he has known in the United States. The court notes that respondent has a strong succession claim for the subject premises. As alleged by respondent, he came to the United States from China in 1991 with his mother and brother, and has lived in the subject premises with his mother since 1991 until she permanently vacated in 2016. Even with his strong succession claim and free legal representation, respondent fired his attorney and agreed to vacate the subject premises, which respondent is entitled to do if he truly understands the consequences of these action. However, the court finds that respondent did not understand the consequences of his actions and the consequences of the stipulation agreement. As brought out in the hearing respondent has been diagnosed as paranoid schizophrenic, he has been hospitalized throughout the years since 2010, six times for psychiatric problems and he receives SSI for his mental disability. Furthermore, in respondent’s order to show cause respondent’s brother asserts that he was initially unaware of this litigation and that his mother was helping Tan but because of her health issues he sought to assist Tan and contacted Manhattan Legal Services. Respondent’s brother asserts in his affidavit that he specifically told respondent to adjourn the case on August 21, 2018, so that they could speak with the new attorney. Tan failed to adjourn the case and ultimately signed an agreement awarding petitioner a possessory judgment. Tan testified that his perception of the Agreement was open ended and that he understood that if he chose to move to China he would give the apartment back to the landlord. He testified that the stipulation “was not important to me because I am not an attorney.” He also believed the case was about the landlord cutting off the gas service. In considering respondent’s testimony and the circumstances within this proceeding, it is clear to the court that respondent has some mental health issues that prevented him from understanding the full context of what was happening and that respondent entered into the stipulation improvidently and unadvisedly. Additionally, respondent has a meritorious succession claim with a reasonable probability that he may be successful at trial. As previously stated, the standard for the appointment of a GAL is the preponderance of the evidence. The court finds that based upon the testimony and evidence presented to the court that respondent is an adult incapable of adequately prosecuting or defending his rights and is in need of a GAL. Therefore, respondent’s order to show cause is granted in its entirety. The portion of the motion seeking to vacate the judgment and warrant entered on August 21, 2018 is granted, the portion of the of the motion seeking to vacate the stipulation agreement is vacated, and the portion of the motion seeking to appoint a GAL is also granted. Respondent seeks to have his brother appointed as his GAL and his brother is willing to go through the applicable GAL training, however, the court will appoint its own GAL. If there are no Mandarin speaking GALs available, the court will consider appointing respondent’s brother with the appropriate training. Petitioner seeks in its cross-motion, an Independent Medical Examination (IME). Petitioner argues that Tan never had a GAL before and that he has brought numerous cases against the landlord causing the landlord to expend substantial legal fees and that APS denied respondent’s case. Herein, there is no need for an IME as the standard for the appointment of a GAL is low and even without an IME the court finds that there is sufficient cause to vacate the stipulation. Additionally, petitioner has not established ample need to warrant an IME. A person does not have to be clinically diagnosed with mental illness to warrant the appointment of a GAL. The need for the names of respondent’s medication is also not necessary in this instance, and respondent’s objection to this point is sustained. Therefore, petitioner’s cross motion is denied in its entirety. Conclusion After careful consideration of the testimony and evidence submitted by the parties, respondent’s order to show cause is granted in its entirety. The August 21, 2018 stipulation agreement and judgment and warrant are vacated. The matter shall be restored to the court’s calendar on January 27, 2020, Part H, Room 523 at 10:30 am for the appointment of a GAL. Petitioner’s cross motion for an independent medical examination is denied. Petitioner may seek to restore it prior discovery motion and may seek payment of on-going use and occupancy if it is outstanding. This constitutes the decision and order of the court. Dated: December 30, 2019 New York, New York
