Granted, reading a decision does not always illuminate the facts behind the case, but Gilbo v Horowitz  2019 NY Slip Op 30320(U)  February 9, 2019  Supreme Court, New York County
Docket Number: 158727/2017 Judge: Margaret A. Chan is very startling.  It’s a legal malpractice case along with a declaratory judgment that he was incompetent to sign a retainer or a power of attorney.  Why was he incompetent?  Was he incompetent?  Read on.

“On July 21, 2012, plaintiff attended a wedding reception in Brooklyn where he had six vodka and soda drinks in a span of two and one-half hours (NYSCEF # 7 – Hearing tr., p 17). After the reception, he left to meet friends at a nearby lounge. As he walked across Flatbush Avenue, he was struck by a motor vehicle driven by non-party Crandall Glasgow. Plaintiff sustained devastating injuries from this accident and spent nine weeks in a medically induced coma and seven months
recuperating in the hospital (NYSCEF # 1- Verified Complaint at 1l1l 12-13).

On July 27, 2012, plaintiffs mother enlisted Mark Bodner, Esq. to represent plaintiff (NYSCEF #115 – Bodner aff at ii 4). On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement (retainer) with defendant Mark L. Bodner, P.C. and simultaneously executed a power of attorney (POA) authorizing his mother to pursue a personal injury claim related to the accident on
his behalf (Complaint at 1l 18). On September 21, 2012, Bodner settled plaintiffs personal injury case with Glasgow’s insurer for the purported policy limit of $25,000.00 (id at 1l 20; Bodner aff at ii 8). Bodner avers that plaintiffs mother authorized Bodner to settle the case against the driver, Glasgow (NYSCEF # 115 -Bodner aff at ilil 8, 11). Bodner attempted to deliver the net proceeds of the settlement to Gilbo, but Gilbo rejected it (id at ,-r 28).”

“Plaintiff seeks a declaratory judgment nullifying the retainer and POA appointing his mother as attorney-in ·fact so to restore his case against the driver to the status quo. As plaintiffs mother is not a defendant here, this Decision and Order does not speak to the POA.

Bodner argues that plaintiffs basis for a rescission of the retainer is his incompetency due to his dire medical condition at the time he signed the retainer.  Bodner contends that plaintiffs conclusory allegations tending to show Bodner’s incapacity are insufficient to state a claim for rescission.
“A party’s competence to enter into a contract is presumed, and the party asserting incapacity bears the burden of proof’ (Er-Loom Realty, LLC v Prelosh Realty, LLC, 77 AD3d 546, 547 [lst Dept 2010] citing Feiden v Feiden, 151 AD2d 889, 890 [3d Dept 1989]). Plaintiff has to show by clear and convincing evidence that his mind was “so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction” (Sears v First Pioneer
Farm Credit, ACA, 46 AD3d 1282, 1284-1285 [3d Dept 2007] quoting Aldrich v Bailey, 132 NY 85, 89 [1892]). Plaintiff has to show further “that such incompetency/incapacity existed when he executed the … documents …. ” (Sears, 132 NY at 89 citing Feiden, 151 AD2d at 890).

Plaintiff avers that he “particularly pled for a Declaratory Judgment nullifying the power of attorney (“POA”), that gave his mother the power as agent, and the Bodner P.C. Retainer Agreement he signed while in a heavily medicated medically induced coma (“MIC”), both of which Plaintiff signed on September 14, 2012, only weeks after [he] was gravely injured” (NYSCEF #130 – Gilbo Aff at if 8).
Plaintiff does not deny signing the documents, which were notarized the same day. Plaintiff questions whether the notary was present when plaintiff signed since the notary, and Bodner, should have realized that plaintiff was not of sound mind (id. at if 16). Bodner provides only his allegations for the knowledge he imputes to the notary and Bodner.

Plaintiff asks this court to take judicial notice of his medical condition as alleged in his complaint because those allegations were undisputed (Gilbo Aff at if 12). This court declines plaintiffs request. But, this court takes plaintiffs allegations as true as this court must for the purposes of this motion to dismiss.

Plaintiff, who suffered a traumatic brain injury, among other injuries, was in a medically induced coma for nine weeks after being hospitalized on July 21 (Gilbo Aff at if 10; Complaint at if 12). Nine weeks from July 21 is September 22. Plaintiff signed the documents on September 14, at least one week prior to coming out of the nine-week coma. Plaintiff does not deny signing the documents but claims that “[a]t no time on September 14, 2012, was [he] of sound mind to reasonably understand
the nature and significance of the POA and the Bodner P.C. Retainer Agreement.” (Gilbo Aff at if 15). In other words, plaintiffs contention is that he signed the documents while he was in a medically induced coma, and that is the reason he lacked the capacity to understand what he signed.
Plaintiffs allegations of his medical condition are significant and serious; they are also conclusory. This court cannot jump to the conclusion plaintiff proffers for his cause of action to rescind the retainer. Bodner’s motion to dismiss plaintiffs fourth cause of action for a declaratory judgment nullifying the retainer is granted. “