Vinokur v. Balzaretti

In an action for specific performance of a contract to convey real property, the appeal is from an order of the Supreme Court, Queens County, dated August 15, 1977, which denied the motion of a "friend” of defendant (see CPLR 1202, subd [a], par 2) to vacate a stipulation of settlement and conduct a hearing to determine whether the defendant requires a guardian ad litem to protect her interests in the action, and, if so, whether he should be so appointed. Order reversed, without costs or disbursements, and action remanded to Special Term for further proceedings not inconsistent herewith. In our opinion, it was an abuse of discretion for Special Term to have denied, without a hearing, the motion to determine defendant’s fitness to adequately defend her rights in the light of the strong allegations of senility presented in the moving affidavits. The fact that she was adequately represented by counsel in the proceedings is of no consequence (see Anderson v Anderson, 164 App Div 812). The public policy of this State, and of this court, is one of rigorous protection of the rights of the mentally infirm (see CPLR 321, 1201). Hopkins, J. P., Martuscello, Titone and Rabin, JJ., concur.