Скачать или смотреть Incapacitated Person Barred from Serving as Process Server? WGG v. JDS

In this video, we discuss the case of W.G.G. v. J.D.S., which addresses whether who has previously been declared incapacitated and is a relative of a litigant can serve as a process server. A must watch for all elder law practitioners, estate planners, family of incapacitated persons, matrimonial practitioners, and all who enjoy learning about real civil/elder law cases.

Case Name: W.G.G. v. J.D.S.
Citation: 2024 NY Slip Op 24072 (https://caselaw.findlaw.com/court/ny-...)
Publication Date: 03/06/24
Issue: Can a person who was declared incapacitated and is a relative, server as a process server in a matrimonial action?

Key Parts of the Decision:

Overall Issue: "The principal issue on this application poses a precise question of law: may a person who has judicially been declared to be incapacitated, and who is a relative of one of the parties serve process and legal papers in a matrimonial action?"

"The instant application provides a matrimonial court with an opportunity to address the efficacy of service of legal papers, completed by a person who is: (a) a relative of one of the parties and (b) been judicially determined to be incapacitated."

Overall Holding: "Because the Court answers that question in the negative, the Court finds that any such purported service performed by that individual constitutes a nullity. The Court therefore finds that the Defendant has established a "reasonable excuse" for her default and vacates the default entered against her."

"Initially, and as a threshold matter, CPLR § 2013(a) provides: Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over."

"While the text of CPLR § 2013(a) provides that any person not a party and eighteen (18) years of age or older may serve papers, the text of CPLR § 2013(a) also seemingly implies that the Court has discretionary authority to limit or prohibit service of process by certain individuals. The Court finds that authority in the phrase "...or order of the court..." after the words "[e]xcept where otherwise prescribed..." CPLR § 2013(a)'s ill-defined and vague exception (see supra) as to who may not serve process naturally begs the converse, but obvious, question: who cannot serve process?"

"This Court concludes that a person who is a relative of a party who has also been found by a court to be incapacitated cannot serve process in a matrimonial action. Public policy and due process considerations compel that result. The risk of abuse of service of process is simply too great for the Court to be reliant upon an incapacitated relative to perform and swear to the fact that he or she effectuated service of process."

"The Court is dubious that a person who cannot decide where he lives, cannot decide where or if he can travel, cannot decide whether or not to receive medical care, cannot decide whether or not he can marry or divorce, cannot make a will, cannot enter contracts, cannot prosecute or defend lawsuits and/or cannot make decisions concerning his education could, in the same vein, serve process and swear to the efficacy of such service for a lawsuit."

"It cannot reasonably be expected or inferred that the Plaintiff's Son - an incapacitated person - can manage his or her affairs or understand the legal consequences or ramifications of his or her decision(s), especially in light of the express findings in the Guardianship Order. The inability of the Plaintiff's Son to be able to make contracts implicitly renders him unable to either make an offer, accept an offer, provide consideration for the offer, mutually assent to the terms of the contract and/or intend to be bound by the agreement. Additionally, the inability of the Plaintiff's Son to either prosecute, defend or settle a lawsuit implicitly renders him unable to make decisions concerning that lawsuit irrespective of whether or not he is prosecuting it or defending it. If an incapacitated person cannot effectively be a party to a lawsuit, it naturally flows that such a person cannot be expected to serve process for a lawsuit."

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