RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
7294
2003-2004 Regular Sessions
IN ASSEMBLY
March 25, 2003
___________
Introduced by M. of A. STRANIERE -- read once and referred to the
Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to making
technical corrections thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 1201 of the civil practice law and rules, as
2 amended by chapter 115 of the laws of 1981, is amended to read as
3 follows:
4 § 1201. Representation of infant, incompetent person, or conservatee.
5 Unless the court appoints a guardian ad litem, an infant shall appear by
6 the guardian of his or her property or, if there is no such guardian, by
7 a parent having legal custody, or, if there is no such parent, by anoth-
8 er person or agency having legal custody, or, if the infant is married,
9 by an adult spouse residing with the infant, a person judicially
10 declared to be incompetent shall appear by the committee of his or her
11 property, and a conservatee shall appear by the conservator of his or
12 her property. A person shall appear by his or her guardian ad litem if
13 he or she is an infant and has no guardian of his or her property,
14 parent, or other person or agency having legal custody, or adult spouse
15 with whom he or she resides, or if he or she is an infant, person judi-
16 cially declared to be incompetent, or a conservatee [as defined in
17 section 77.01 of the mental hygiene law] and the court so directs
18 because of a conflict of interest or for other cause, or if he or she is
19 an adult incapable of adequately prosecuting or defending his or her
20 rights.
21 § 2. Rule 1202 of the civil practice law and rules, subdivisions (a)
22 and (b) as amended by chapter 115 of the laws of 1981, is amended to
23 read as follows:
24 Rule[.] 1202. Appointment of guardian ad litem. (a) By whom motion
25 made. The court in which an action is triable may appoint a guardian ad
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11751-01-3
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1 litem at any stage in the action upon its own initiative or upon the
2 motion of:
3 1. an infant party if he or she is more than fourteen years of age; or
4 2. a relative, friend or a guardian, committee of the property, or
5 conservator; or
6 3. any other party to the action if a motion has not been made under
7 paragraph one or two within ten days after completion of service.
8 (b) Notice of motion. Notice of a motion for appointment of a guardian
9 ad litem for a person shall be served upon the guardian of his or her
10 property, upon his or her committee or upon his or her conservator, or
11 if he or she has no such guardian, committee, or conservator, upon the
12 person with whom he or she resides. Notice shall also be served upon the
13 person who would be represented if he or she is more than fourteen years
14 of age and has not been judicially declared to be incompetent.
15 (c) Consent. No order appointing a guardian ad litem shall be effec-
16 tive until a written consent of the proposed guardian has been submitted
17 to the court together with an affidavit stating facts showing his or her
18 ability to answer for any damage sustained by his or her negligence or
19 misconduct.
20 § 3. Section 1203 of the civil practice law and rules is amended to
21 read as follows:
22 § 1203. Default judgment. No judgment by default may be entered
23 against an infant or a person judicially declared to be incompetent
24 unless his or her representative appeared in the action or twenty days
25 have expired since appointment of a guardian ad litem for him or her. No
26 default judgment may be entered against an adult incapable of adequately
27 protecting his or her rights for whom a guardian ad litem has been
28 appointed unless twenty days have expired since the appointment.
29 § 4. Section 1206 of the civil practice law and rules, as amended by
30 chapter 115 of the laws of 1981, the opening paragraph as amended by
31 chapter 635 of the laws of 1988, subdivision (b) as amended by chapter
32 205 of the laws of 1995 and subdivision (c) as amended by chapter 464 of
33 the laws of 1995, is amended to read as follows:
34 § 1206. Disposition of proceeds of claim of infant, judicially
35 declared incompetent or conservatee. [Except as provided in EPTL 7-4.9,
36 any] Any property to which an infant, a person judicially declared to be
37 incompetent or a conservatee is entitled, after deducting any expenses
38 allowed by the court, shall be distributed to the guardian of his or her
39 property, the committee of his or her property or conservator to be held
40 for the use and benefit of such infant, incompetent, or conservatee
41 except that:
42 (a) in the case of an infant who is married to and resides with an
43 adult spouse, the court may order that the property be distributed to
44 such adult spouse for the use and benefit of the infant; or
45 (b) if the value of the property does not exceed ten thousand dollars
46 the court may order the property distributed to a person with whom such
47 infant, incompetent or conservatee resides or who has some interest in
48 his or her welfare to be held for the use and benefit of such infant,
49 incompetent or conservatee; or
50 (c) the court may order that money constituting any part of the prop-
51 erty be deposited in one or more specified insured banks or trust compa-
52 nies or savings banks or insured state or federal credit unions or be
53 invested in one or more specified accounts in insured savings and loan
54 associations, or it may order that a structured settlement agreement be
55 executed, which shall include any settlement whose terms contain
56 provisions for the payment of funds on an installment basis, provided
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1 that with respect to future installment payments, the court may order
2 that each party liable for such payments shall fund such payments, in an
3 amount necessary to assure the future payments, in the form of an annui-
4 ty contract executed by a qualified insurer and approved by the super-
5 intendent of insurance pursuant to articles fifty-A and fifty-B of this
6 chapter. The court may elect that the money be deposited in a high
7 interest yield account such as an insured "savings certificate" or an
8 insured "money market" account. The court may further elect to invest
9 the money in one or more insured or guaranteed United States treasury or
10 municipal bills, notes or bonds. This money is subject to withdrawal
11 only upon order of the court, except that no court order shall be
12 required to pay over to the infant who has attained the age of eighteen
13 years all moneys so held unless the depository is in receipt of an order
14 from a court of competent jurisdiction directing it to withhold such
15 payment beyond the infant's eighteenth birthday. Notwithstanding the
16 preceding sentence, the ability of an infant who has attained the age of
17 eighteen years to accelerate the receipt of future installment payments
18 pursuant to a structured settlement agreement shall be governed by the
19 terms of such agreement. The reference to the age of twenty-one years in
20 any order made pursuant to this subdivision or its predecessor, prior to
21 September first, nineteen hundred seventy-four, directing payment to the
22 infant without further court order when he or she reaches the age of
23 twenty-one years, shall be deemed to designate the age of eighteen
24 years; or
25 (d) the court may order that the property be held for the use and
26 benefit of such infant, incompetent or conservatee as provided by subdi-
27 vision (d) of [section] rule 1210.
28 § 5. Rule 1208 of the civil practice law and rules, as amended by
29 chapter 844 of the laws of 1968, is amended to read as follows:
30 Rule 1208. Settlement procedure; papers; representation.
31 (a) Affidavit of infant's or incompetent's representative. An affida-
32 vit of the infant's or incompetent's representative shall be included in
33 the supporting papers and shall state:
34 1. his or her name, residence and relationship to the infant or incom-
35 petent;
36 2. the name, age and residence of the infant or incompetent;
37 3. the circumstances giving rise to the action or claim;
38 4. the nature and extent of the damages sustained by the infant or
39 incompetent, and if the action or claim is for damages for personal
40 injuries to the infant or incompetent, the name of each physician who
41 attended or treated the infant or incompetent or who was consulted, the
42 medical expenses, the period of disability, the amount of wages lost,
43 and the present physical condition of the infant or incompetent;
44 5. the terms and proposed distribution of the settlement and his or
45 her approval of both;
46 6. the facts surrounding any other motion or petition for settlement
47 of the same claim, of an action to recover on the same claim or of the
48 same action;
49 7. whether reimbursement for medical or other expenses has been
50 received from any source; and
51 8. whether the infant's or incompetent's representative or any member
52 of the infant's or incompetent's family has made a claim for damages
53 alleged to have been suffered as a result of the same occurrence giving
54 rise to the infant's or incompetent's claim and, if so, the amount paid
55 or to be paid in settlement of such claim or if such claim has not been
56 settled the reasons therefor.
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1 (b) Affidavit of attorney. If the infant or incompetent or his or her
2 representative is represented by an attorney, an affidavit of the attor-
3 ney shall be included in the supporting papers and shall state:
4 1. his or her reasons for recommending the settlement;
5 2. that directly or indirectly he or she has neither become concerned
6 in the settlement at the instance of a party or person opposing, or with
7 interests adverse to, the infant or incompetent nor received nor will
8 receive any compensation from such party, and whether or not he or she
9 has represented or now represents any other person asserting a claim
10 arising from the same occurrence; and
11 3. the services rendered by him or her.
12 (c) Medical or hospital report. If the action or claim is for damages
13 for personal injuries to the infant or incompetent, one or more medical
14 or hospital reports, which need not be verified, shall be included in
15 the supporting papers.
16 (d) Appearance before court. On the hearing, the moving party or peti-
17 tioner, the infant or incompetent, and his or her attorney shall attend
18 before the court unless attendance is excused for good cause.
19 (e) Representation. No attorney having or representing any interest
20 conflicting with that of an infant or incompetent may represent the
21 infant or incompetent.
22 (f) Preparation of papers by attorney for adverse party. If the infant
23 or incompetent is not represented by an attorney the papers may be
24 prepared by the attorney for an adverse party or person and shall state
25 that fact.
26 § 6. Rule 1210 of the civil practice law and rules, as amended by
27 judicial conference proposal number 2 for the year 1969, subdivision (d)
28 as amended by chapter 464 of the laws of 1995, is amended to read as
29 follows:
30 Rule 1210. Guardian of infant. (a) Petition for appointment; by whom
31 presented; contents. An infant, if of the age of fourteen years or more,
32 or a relative or friend of an infant, may present a petition to the
33 court for appointment of a guardian. The petition shall state the age
34 and residence of the infant, the name and residence of any living parent
35 and of the person proposed as guardian, the relationship if any which
36 such person bears to the infant, and the nature, status and value of the
37 infant's estate.
38 (b) Hearing. The court shall ascertain the age of the infant, the
39 amount of his or her personal property, the gross amount or value of the
40 rents and profits of his or her real estate during his or her minority,
41 and the sufficiency of the security offered by the proposed guardian. If
42 the infant is of the age of fourteen years or more, the court shall
43 examine him or her as to his or her voluntary nomination of or prefer-
44 ence for a suitable guardian; if he or she is under the age of fourteen,
45 the court shall select and appoint a suitable guardian.
46 (c) Undertaking. The court shall make an order requiring or dispensing
47 wholly or partly with an undertaking, in an amount and according to the
48 conditions set forth in section seventeen hundred eight of the surro-
49 gate's court procedure act.
50 (d) Direction as to management of estate. The court in its discretion
51 may direct that the principal of the estate or any part of it be
52 invested in bonds of the state of New York or of the United States, or
53 invested in bonds or other obligations of any county, city, town,
54 village or school district of the state of New York, or deposited with
55 any bank, trust company, insured savings and loan association or insured
56 savings bank or insured state or federal credit union which has been
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1 designated as a depository for such fund; or invested in a bond and
2 mortgage on unincumbered and improved property within the state, having
3 a value, to be shown to the satisfaction of the court, of at least
4 double the amount of principal invested, for the benefit of the infant,
5 and may direct that only the interest or income be received by the guar-
6 dian.
7 (e) Filing of certified copy of order of appointment. Upon the
8 appointment of a guardian of the person or property, or both, of an
9 infant, the guardian shall file a certified copy of the order of his or
10 her appointment with the clerk of the surrogate's court of the county in
11 which he or she has been appointed.
12 § 7. Rule 1211 of the civil practice law and rules, subdivision (a) as
13 amended by chapter 276 of the laws of 1972, is amended to read as
14 follows:
15 Rule 1211. Allowance for infant's support. (a) Petition to supreme
16 court, county court or surrogate's court; contents. A petition to the
17 supreme court, county court or the surrogate's court for the application
18 of an infant's property or a portion thereof to the infant's support,
19 maintenance or education shall set forth in detail:
20 1. the amount and nature of the infant's property, where it is situ-
21 ated and how invested, his or her income from such property or any other
22 source and any claim against the infant;
23 2. whether or not the infant's parents are living and, if either of
24 them is living, all circumstances relative to their ability to support
25 the infant, and, if neither of them is living, the names of other
26 persons legally obligated to support the infant and the circumstances
27 relative to their ability to support the infant; and
28 3. the terms of any previous order made by any court within or without
29 the state for similar relief and the disposition made of any property
30 pursuant thereto.
31 (b) Notice. Such notice as the court shall direct shall be given to:
32 1. the guardian of the property of the infant, if the petition is
33 presented by a person other than such guardian;
34 2. the infant's father if he is living or, if not, then to the
35 infant's mother or, if neither parent is living, then to the person with
36 whom the infant resides; and
37 3. the infant if he or she is of the age of fourteen years or more.
38 § 8. This act shall take effect immediately.