In re Bush , 950 NYS2d 229 ( 2012 )

Weston, J.P.

(concurring in part and dissenting in part and voting to reverse the order and grant petitioner’s motion unless, within 45 days of this decision and order, the guardian ad litem submits a written consent and affidavit consistent with the requirements of CPLR 1202 [c] in the following memorandum). I agree with the majority that CPLR 1202 (c), as written, requires a guardian ad litem to submit to the court a written consent to the appointment together with an affidavit demonstrating the ability to pay for any damages occasioned by his negligence. Although the Civil Court, in a thorough decision, provided ample justification for the appointment, we cannot ignore the fact that CPLR 1202 (c) is written in mandatory terms and is a prerequisite to the appointment of a guardian ad litem. However, unlike the majority, I would decline to reverse and remit the matter to Civil Court for the appointment of a different guardian at this time. Instead, I would remit the matter to give the guardian ad litem the opportunity to submit a written consent and affidavit consistent with the requirements of CPLR 1202 (c).

Pesce and Rios, JJ., concur; Weston, J.P., concurs in part and dissents in part in a separate memorandum.