| Nova v Jerome Cluster 3, LLC |
| 2007 NY Slip Op 09682 [46 AD3d 292] |
| December 6, 2007 |
| Appellate Division, First Department |
| Rolando M. Nova, Respondent, v Jerome Cluster 3, LLC,et al., Appellants, et al., Defendant. (And Other Actions.) |
—[*1] Dinkes & Schwitzer, P.C., New York City (Souren A. Israelyan of counsel), forrespondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about October 2, 2006,which denied the motion of defendants Jerome Cluster 3, LLC, and Jerome Construction Co.,LLC, to appoint a guardian ad litem for plaintiff, unanimously affirmed, without costs. Appealsfrom the transcript of the proceedings underlying the order of October 2, 2006; from an order,same court and Justice, entered July 7, 2006, which set down for a hearing the issue whether aguardian ad litem should be appointed; from an order, same court and Justice, entered on orabout October 4, 2006, which denied defendants' application by order to show cause to compelcompliance with trial subpoenas; and from an order, same court and Justice, entered November14, 2006, which declined to sign defendants' order to show cause to, inter alia, vacate, modify orreargue the October 2, 2006 order, unanimously dismissed, without costs.
No appeal lies from an unsigned transcript (see CPLR 2219 [a]; 5701; Domanskyv Berkovitch, 251 AD2d 3, 3 [1998]). In any event, the transcript is part of the record onappeal from the order. Defendants were not aggrieved by the July 7, 2006 order, which referredthe issue of the appointment of the guardian ad litem for a hearing, as they were granted the reliefthey requested (see CPLR 5511; Campoverde v Liberty, LLC, 37 AD3d 275 [2007]). The October 4,2006 order denying defendants' order to show cause to compel compliance with trial subpoenaswas rendered academic by the October 2, 2006 order denying their motion to appoint a guardianad litem. No appeal lies from an order declining to sign an order to show cause or denying theportion of the order to show cause that seeks reargument (see M & J Trimming v Kew Mgt.Corp., 254 AD2d 21 [1998]).[*2]
Defendants' rationale for requesting appointment of aguardian ad litem for plaintiff—to protect their own rights in the litigation—iscontrary to the rationale for appointment of a guardian ad litem, which is to protect the rights ofthe allegedly incompetent person (CPLR 1201; see e.g. Palaganas v D.R.C. Indus., 64AD2d 594 [1978]). In any event, defendants failed to present evidence tending to show thatplaintiff was incapable of either prosecuting or defending his rights. In fact, their position withrespect to the necessity for a guardian ad litem directly contradicted the position they intended totake at trial. Thus, the court properly refused to consider appointing a guardian ad litem torepresent plaintiff's interests (see Urban Pathways v Lublin, 227 AD2d 186 [1996];compare Shad v Shad, 167 AD2d 532 [1990]).
We have considered defendants' remaining contentions and find them without merit.Concur—Tom, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.