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(631)-223-4502When we talk about “incompetence”, we are not talking about your office assistant who frequently mixes up the coffee creamer with Mylanta. We are talking about judicial incompetence wherein the afflicted has not been formally declared incompetent by a judicial body following an Article 81 proceeding, but instead displays evidence of “apparent incompetence” where the practical aspects of incompetence are glaringly present even though the issue has not been brought before a Court. It’s easy to picture a scenario wherein a person with certain cognitive limitations due to (for example) advanced age or infirmity receives a tax lien notice or is served with process in a foreclosure action but doesn’t quite understand what they are receiving or the gravity of the matter before them. The question is- is a formal finding of incompetence following an Article 81 proceeding (“adjudicated incompetence”) a prerequisite for a Court to determine that a person has not received due process?
The Constitution of the United States declares that no person shall be deprived of property without due process of the law. But what is due process? Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of the law of the land and protects the individual person from it. At a minimum, due process means that a citizen who will be affected by a government decision must be given advance notice of what the government plans to do and how the government’s action may deprive that person of life, liberty, or property. The “… elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections …” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 657, 94 L.Ed. 865. Notice “under all the circumstances” to apprise interested parties- those circumstances should undoubtedly include the recipient’s status as an incompetent person.
Compliance with procedural due process requires compliance with three component factors involving (1) the content of the notice (see Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352); (2) the mode of delivery (Valazquez v. Thompson, 451 F.2d 202 [C.C.A.2d], affd. 321 F.Supp. 34 [S.D.N.Y.]); and (3) the characteristics of the recipient (see Covey v. Town of Somers, 351 U.S. 141 (Supreme Court of the United States, 1956) ; Dale V. Hahn, 486 F.2d 76 (1974); Matter of Coates, 9 N.Y.2d 242, 213 N.Y.S.2d 74, 173 N.E.2d 797; Brown v. Giesecke, 40 A.D.2d 1009, 338 N.Y.S.2d 967). Furthermore, each case must be approached pragmatically, without “a mechanical formula or a rigid set of rules.” Dobkin v. Chapman, 21 N.Y.2d 490, 502, 289 N.Y.S.2d 161, 170, 236 N.E.2d 451, 457; See also Matter of Zivkovic v. Zivkovic, 36 N.Y.2d 216, 221, 366 N.Y.S.2d 627, 630, 326 N.E.2d 298, 300) in which the interests of the opposing parties and the state are properly balanced (see discussion in Daynard, The Use of Social Policy in Judicial Decision-Making, 56 Cornell L.Rev. 919, 944-946).
With regard to the “mode of delivery” component stated above, service of process must be made in strict compliance with the statutory methods for effecting personal service upon a natural person pursuant to Civil Practice Law and Rules (“CPLR”) Section 308 (as we well know by now). CPLR Section 308 also sets forth the different ways in which service of process upon an individual can be effected in order for a Court to obtain jurisdiction over that person. Washington Mut. Bank v. Murphy, 127 A.D.3d 1167 (2nd Dept. 2015). Service of process is necessary to obtain personal jurisdiction over a Defendant. Cedar Run Homeowners’ Assn., Inc. v. Adirondack Dev. Group, LLC, 173 A.D.3d 1330 (3rd Dept. 2019). However, there may be situations in which physical service of process will not constitute adequate notice. Dale V. Hahn (supra) (emphasis added).
Incompetence speaks to the “characteristics of the recipient” component stated above. As a base rule, if a person has not been formally, judicially declared incompetent via an Article 81 proceeding, the Courts are reluctant to add any special notice or service requirements or deviate from a straight-forward reading of the statute. “If a defendant has not been declared incompetent, it is proper for the plaintiff merely to serve the defendant. Those acquainted with the defendant’s mental condition, may at that time, bring the matter to the attention of the Court and move to have a guardian ad litem appointed”. Greene v. Resch, 114 Misc.2d 780 (1982). Where necessary or proper, a guardian ad litem, as an arm of the court, may be designated to appear for and take such proceedings as are necessary to protect the interests of the incompetent in a litigation before the court (see CPLR Sections 1201 and 1202). If an attorney becomes aware of their client’s apparent incompetence, it is incumbent upon counsel to move for appointment of a guardian ad litem to protect their client’s interest pursuant to CPLR 1202[a][3]. See Brewster v. John Hancock Mut. Life Ins. Co., 280 A.D.2d 300, 300, 720 N.Y.S.2d 462 [1st Dept. 2001]; Jesten J.F., 167 A.D.3d at 1528, 89 N.Y.S.3d 815; Matter of Anastasia E.M., 146 A.D.3d 887, 888, 45 N.Y.S.3d 199 [2nd Dept. 2017]). The legal presumption of competency continues until a conservator or committee has been appointed. 27 N.Y.Jur. Incompetent Persons p. 473; Weed v. Mutual Benefit Life Insurance Co., 70 N.Y. 561; Williamsen v. State, 207 Misc. 281, 138 N.Y.S.2d 181. A person of unsound mind but not judicially declared incompetent may sue or be sued in the same manner as any other person. Bryant v. Riddle, 259 A.D.2d 399 (1st Dept. 1999). It is well established that the Courts have no power to appoint a special guardian on behalf of a person who, although apparently incompetent to handle his affairs, has not been judicially adjudicated an incompetent. Matter of Frank’s Estate, 283 N.Y. 106, 111, 27 N.E.2d 801, 802; Griffin v. N. Y. Life Insurance Co., 272 App.Div. 939, 72 N.Y.S.2d 50; Zalinsky v. Zalinsky, 103 Misc. 308, 170 N.Y.S. 1005; Gasperini v. Manginelli, 196 Misc. 547, 92 N.Y.S.2d 575.
The Courts here have ruled that unadjudicated incompetents receive no special treatment- service upon an unadjudicated incompetent is valid if otherwise in compliance with CPLR Section 308. Those who wish to make the Court aware of the recipient’s condition thereafter may do so and take the appropriate steps to have a guardian ad litem appointed (notice use of the word “may” in Greene v. Resch– it is discretionary to those acquainted with the recipient. This contrasts with the duties of attorneys that become aware of a client’s apparent incompetence who are then required to move for an appointment of a guardian ad litem).
But what about situations where a person is an unadjudicated incompetent but is generally known to be incompetent (meaning the apparent nature of the incompetence is generally accepted and acknowledged in the community)? The case on point regarding this issue is Blum v. Stone, 127 A.D.2d 549 (2nd Dept. 1987), a Second Department matter wherein a tax sale was held on a parcel of property in Great Neck, New York, due to an aging property owner’s failure to pay taxes towards the end of her life and where her mental capacity had been progressively deteriorating. The Appellate Division ultimately determined that because the property owner was a known but unadjudicated incompetent, the statutory notice provisions with respect to the sale and redemption period were inadequate and, as a result, the deed issued to tax sale purchaser was null and void (in short- no due process).
In determining whether the method of notice of the sale procedures were adequate in light of the property owner’s incompetence, the Appellate Division held that where there are allegations that the person upon whom notice of redemption (or service of process) is served is a known but unadjudicated incompetent, it is essential that a factual inquiry be conducted to ascertain whether the recipient of the notice lacked mental capacity to understand the nature of the proceedings against the property or to understand the meaning and import of the notice. Blum (supra), citing Covey v. Town of Somers, (supra).
In Blum the Court has opened the gates and given hope to “known but unadjudicated incompetents” (unknown, unadjudicated incompetents are still given the legal presumption of competency) by offering them an evidentiary, factual inquiry to ascertain whether the recipient of the notice (or process) lacked mental capacity to understand the nature of the proceedings or to understand the meaning and import of the notice. In Blum, the property owner’s estate should have been afforded an opportunity to present evidence concerning the property owner’s mental capacity, with a view to proving that the statutory notice provisions were inadequate to apprise the incompetent property owner of the pending proceedings and, therefore, the deed was issued without due process of law, notwithstanding absence of proof that the purchaser knew or should have known of property owner’s diminished capacity.
Similarly, in Goldmyrtle Realty Corp. v. Woellner, 36 A.D.2d 968 (2nd Dept. 1971), an action brought by a Plaintiff who purchased Defendant’s property at a sale to bar all claims to the subject property, assertions that Defendant was a known but not adjudicated incompetent at times of pertinent proceedings created questions as to whether statutory notices measured up to requirements of due process and whether the Plaintiff was the absolute owner in fee simple of the subject property. In fact, the Court unequivocally stated that if the Defendant could establish upon trial that the property owner was a known but not adjudicated incompetent at the times of the pertinent proceedings, “there would be no doubt that the statutory notices did not measure up to the requirements of due process…In short, we believe that defendant Woellner is entitled to a trial, at which she may establish her status as a known but unprotected incompetent, and a proper resolution of her claims.” Woellner (supra).
Based on the above, we now known that a formal finding of incompetence following an Article 81 proceeding is not a prerequisite for a Court to determine that a person has not received due process, as long as they are known unadjudicated incompetents. So the final question ultimately (naturally) becomes- “what does it mean to be a ‘known’” incompetent, as the option for a factual inquiry will hinge on this nuanced determination. As stated in Goldmyrtle, that very question is what the Defendant bore the burden of proof in establishing at trial. In Lounsberry v. Hull, 144 Misc.3d 707 (1989), evidenced established that the Defendant was an alcoholic and his alcoholism affected his ability to manage his affairs to varying degrees throughout the years that he failed to pay his taxes, rendering him a known incompetent. In Boschen v. Stockwell, 171 A.D. 34 (3rd Dept. 1916), an “array of doctors, neighbors, nurses [and] experts… was produced before the jury and sworn” in order to confirm the Defendant’s status as a known incompetent. In short, there is no bright line rule.
Through personal litigation experience, your humble author can tell you that the Courts are now keen to grant “known unadjudicated incompetent” status to a person whose family, even though her medical records proved her disabilities, kept her status quiet out of embarrassment. In that particular scenario, the Court found that she was not “known” to the municipality who provided her with otherwise-proper notice as they had no reason to know or believe that she was not apprised of the gravity of the situation before her. It also did not help that she seemed to understand all that was happening around her (hence, no “apparent” incompetence), even though underneath the façade she was quite confused. In fact, after receiving notice of a tax lien sale, the former homeowner, who was attended by a full time aide, simply put the papers in a drawer and never mentioned them to her family. The tax lien sale was upheld. Sadly, not all endings are happy ones.