## Facts

- Michael Barone sued Lillian D. Pierce on a $10,000 promissory note dated June 11, 1965.
- Edna Y. McCurdy (Pierce’s daughter) asserted Barone pressured her to cover his business loss; McCurdy executed the note and forged Pierce’s name as co-maker.
- McCurdy swore Pierce had no knowledge of the note and received no loan or advance from Barone; Barone did not deny these points.
- From 1967 forward, Pierce’s mental condition deteriorated; by 1969 she had hallucinations and required continuous institutional care.
- In February 1970, Pierce was admitted to a county home for the aged and infirm and remained institutionalized until her death in December 1972.
- After learning Pierce was institutionalized, Barone sued Pierce (but not McCurdy) and obtained a default judgment on June 11, 1970 for $10,034.
- In early 1975, Kevin D. Cox, as public administrator c.t.a. of Pierce’s estate, was appointed and moved promptly to vacate the default judgment, supported by affidavits (including McCurdy’s).
- The trial court denied the motion; Cox appealed.

## Issues

1. Whether a default judgment may stand when the plaintiff knew or had reason to know the defendant was incapable of protecting her interests and no guardian ad litem or other representative was obtained.
2. Whether laches barred the estate’s motion to vacate where the administrator moved promptly after appointment.
3. Whether affidavits alleging forgery and lack of consideration could be considered on the vacatur motion despite objections to competency or hearsay.

## Decision

- The Appellate Division, Fourth Department, reversed the order denying vacatur.
- The court vacated the default judgment against Pierce.
- Vacatur was granted without prejudice to Barone pursuing any claim in a procedurally proper proceeding protecting the interests of an incapacitated person or the estate.
- The court rejected laches because the administrator acted promptly after appointment and the earlier delay was not chargeable to an unrepresented incapacitated person or estate.

## Legal Principles

- Under CPLR 1201, an adult incapable of adequately protecting her rights must appear by a proper representative, including a guardian ad litem when appropriate.
- Under CPLR 1203, a default judgment should not be entered against such a person without appointment of a representative.
- A plaintiff who knows or has reason to believe a defendant is incapacitated must inform the court so that protective representation can be arranged; taking a default judgment without doing so warrants vacatur.
- Courts have equitable authority and a protective duty to set aside judgments obtained in derogation of procedures designed to protect incapacitated persons.
- Laches does not bar relief where an estate representative moves promptly after appointment and prior inaction is attributable to the defendant’s incapacity and lack of representation.

## Conclusion

The court vacated a default judgment obtained against an institutionalized, mentally incapacitated defendant because the plaintiff proceeded without alerting the court and without a guardian ad litem or other representative, and it held that the estate’s prompt post-appointment challenge was not barred by laches.


Barone v. Cox, 51 A.D.2d 115, 379 N.Y.S.2d 881 (N.Y. App. Div. 4th Dep’t 1976)