In Uncategorized on 02/08/2021 at 12:22

Judge Mark V Holmes has been many things to many people: from Great Dissenter to Great Concurrer; from Master Silt Stirrer to Old China Hand; always foe of the partitive genitive and the transcontinental Graev; and best of all, a good dinner companion, always ready to share a laugh at the human comedy.

Today he plays customs agent, barring from the Halls of The Glasshouse in The City of the Unrepresented a New York import, the Guardian ad litem. Here in Excelsiorland, when a State court litigant, by reason of infancy or disability, is unable to proceed in propria persona or to give instructions to, and consult with, an attorney, our Civil Practice Law and Rules Section 1202 provides for appointment, on motion and after a hearing, of a guardian ad litem, to protect that party’s rights and interests.

No, that’s not what Tax Court calls a  Rule 60 “next friend.” The Tax Court counterpart arrives in a much more informal way. Judge Holmes instructs, in Malka Yerushalmi, Petitioner, and Joseph Yerushalmi, Intervenor, Docket No. 5520-08, filed 2/8/21.

The years have not brought Malka and Joseph closer together. There’s some backstory in my blogpost “First Checklist for Innocent Spousers,” 11/4/19. Briefly, in today’s installment Judge Holmes notes the case “… has long been complicated by the difficult relationship between the spouses. Intervenor moved to name a next friend to pursue the litigation on his behalf. Petitioner objected.” Order, at p. 1.

Malka seems to enjoy the fight.

“Petitioner argues that this means that the appointment of a next friend is the legal equivalent of a motion to appoint a guardian ad litem, and that this is a somewhat formal procedure under New York law that ordinarily requires a hearing.

“We disagree. The term ‘next friend’ is not the same as ‘guardian ad litem‘ — it’s a somewhat informal designation that the Court may find someone to fill, for example, when the Court encounters a pro se litigant whose performance is such as to raise ‘a serious question as to the party’s competence.’ Petitioner also pointed us to no authority that says our Rule 60(d) incorporates by reference whatever the procedures are in the forum state for determining someone’s general competence.” Order, at p. 1.

Finally, Judge Holmes points out that this saga has reached Year Thirteen, and maybe so Joseph is tiring in the backstretch.

“Our Rules allow appointment of a ‘next friend’ under the much looser standard of when ‘justice so requires.’ We appoint ‘next friends’ only to be helpful in prosecuting a case, not in assuming an incompetent’s legal rights and obligations in a particular matter, or to control his property generally. It is, in other words, an aid to the fair and efficient conduct of litigation.” Order, at p. 1.



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