Cagnina v. Onondaga County
| Decision Date | 27 September 2010 |
| Docket Number | RJI No. 33-10-0191,Index No. 09-7938 |
| Citation | 2010 NY Slip Op 33032 |
| Parties | CHRISTINA G. CAGNINA, Plaintiff, v. ONONDAGA COUNTY, THE ASSIGNED COUNSEL PROGRAM, INC., the HON. ANN PFAU in her capacity as Chief Administrative Judge of the New York State Unified Court System, the HON. JAMES TORMEY in his capacity as Administrative Judge of the Fifth Judicial District and the ONONDAGA COUNTY BAR ASSOCIATION, Defendants. |
| Court | New York Supreme Court |
The plaintiff, Christina Cagnina, commenced this action by and through her attorney, Jeffrey Parry, by filing a summons with notice with the Office of the County Clerk for Onondaga County on November 30, 2009. The defendants, Onondaga County ("County"), the Assigned Counsel Program, Inc. ("ACP"), and the Onondaga County Bar Association ("OCBA") appeared and demanded service of a complaint on or about December 9, 2009. On December 29, 2009, the plaintiff served her complaint. The County, ACP, and OCBA joined issue on January 19, 2010.
The plaintiff, an attorney who formerly was, pursuant to contract, a member of the panel of attorneys who are assigned through the ACP to represent indigent clients. The plaintiff chose not to renew her contract with the ACP and, therefore, is no longer a member of the ACP panel.
Plaintiff brings this action alleging five causes of action: breach of contract; equitable estoppel; declaratory judgment; fraud and breach of fiduciary duty; and conversion.
The defendants County, ACP and OCBA brings the instant motion to dismiss pursuant to CPLR §3212, asking the Court to dismiss (a) all causes of action as against the OCBA; and (b) the plaintiff's second, third and fourth causes of action against all moving defendants.
It is typically at this point in a decision where a court might recite the relevant facts giving rise to the matter at bar. However, here the Court finds it relevant, if not absolutely necessary, to recount the facts and procedural history of another matter pending before it: Parry v. County of Onondaga et al.. Index Nos.: 2007-5138 and 20078002.
Like Ms. Cagnina, the plaintiff herein, Mr. Parry (attorney for Ms. Cagnina and pro se plaintiff in Parry v. County of Onondaga, supra) was also a panel attorney pursuant to contract with the ACP. He too was assigned through the ACP to represent indigent clients; that is, until he chose not to renew his contract with the ACP and essentially removed himself from the panel.
Mr. Parry filed an Article 78 petition, Parrv v. County of Onondaga, et al.. ("Parry Art. 78"), wherein he sought to compel courts to assign counsel to indigent persons and to pay assigned counsel without reference to the assigned counsel plan instituted by the County and the OCBA. This petition was transferred directly to the Appellate Division, Fourth Department, for consideration. The first of two actions Parry v. County of Onondaga, et al.. Index No.: 2007-5138 ("Parry I"). Parry I, filed on or about September 12, 2007, stated three causes of action against the County, ACP and OCBA, among other defendants: breach of contract, breach of fiduciary duty and for a declaratory judgment. Notably, the declaratory judgment Mr. Parry demanded of this Court was that the rules and regulations of the ACP are "ultra vires, illegal, and a nullity."
On or about November 27, 2007, Mr. Parry commenced a second action, Parry v. County of Onondaga, et al.. Index No.: 2007-8002 ("Parry II") Parry II states seven causes of action against the County, the ACP and OCBA, among others, sounding in negligence and/or gross negligence; fraud; economic duress; interference with legal remedies; conversion; interference with contractual relations; and injurious falsehood.
Upon motion by the defendants, and after review of papers submitted by both the plaintiff and the defendants, and after oral argument was heard from both sides, this Court issued a decision from the bench on February 14, 2008, and, for reasons stated therein, dismissed all of Mr. Parry's causes of action in Parry I as against many of the named defendants, including, and in particular, the OCBA. An Order in keeping with that decision was signed on March 4, 2008, and filed on March 5, 2008. A copy of said Decision and Order are attached hereto and incorporated herein by reference and marked as Exhibit "A".
On May 2, 2008, the Appellate Division, Fourth Department, issued its decision on Mr. Parry's Article 78 petition, Parry v. County of Onondaga.51 AD3d 1385. The court held that Mr. Parry had failed to establish a "clear legal right" to the relief sought and dismissed the petition. The Appellate Division found that the County, through its contract with the ACP, had met its obligation to place in operation a plan for the provision of assigned counsel to persons charged with crimes or who otherwise areentitled to assigned counsel and who are financially unable to obtain counsel. Id. at 1386. Further, the court concluded that because the ACP's assigned counsel plan had been approved by the Chief Administrative Judge of New York, that the respondents, in establishing and operating the ACP, were not violating County Law §722 or otherwise infringing upon the court's inherent authority to provide assigned counsel in criminal cases, as alleged by Mr. Parry. Id. at 1387. Finally, the court pointed out that to the extent that Mr. Parry's petition sought a declaration that the rules and regulations of the ACP violated constitutional or statutory requirements and are therefore a nullity, Mr. Parry must seek such a declaration via a declaratory judgment action (which was already pending in this Court). Id. A copy of said Decision is attached hereto and incorporated herein by reference and marked as Exhibit "B".
Thereafter, upon motion by the defendants and after the Court reviewed all papers submitted by and heard oral arguments from both Mr. Parry and defendants, this Court issued a decision, again from the bench, on June 26, 2008, and for reasons stated therein, dismissed all of Mr. Parry's causes of action in Parry II as against many of the named defendants, including in particular, the OCBA. Further, the Court dismissed Mr, Parry's first, second, third, sixth and seventh causes of action against all the defendants; granted Mr. Parry's cross-motion to consolidate Parry I and Parry II; and issued a discovery schedule, among other things. An Order in keeping with this decision was signed on July 8, 2008 and filed on July 10, 2008. A copy of said Decision and Order are attached hereto and incorporated herein by reference and marked as Exhibit "C".
On November 12, 2008, Mr, Parry moved this Court for summary judgment on his third cause of action in the complaint for Index No.: 2007-5138, for a declaratoryjudgment. Mr. Parry demanded the court to issue a declaratory judgment stating that the rules and regulations of the ACP were ultra vires, illegal and a nullity. The remaining defendants-the County, ACP and OCBA, filed a cross-motion for summary judgment. After extensively reviewing all of the papers submitted by both Mr. Parry and the defendants, and after listening to and considering the arguments of both sides, this Court issued an exhaustive decision which denied Mr. Parry's motion for summary judgment and granted, in part, the defendants' cross-motion for summary judgment. The Court clearly, concisely and unequivocally set forth the Court's reasoning and the legal basis for dismissing Mr. Parry's declaratory judgment action:
The Assigned Counsel plan is designed to facilitate and implement the court's exercise of its inherent power to deal with and monitor assigned counsel, inasmuch as such plan served to provide a constant, ready source of available counsel, to define the amount and source of compensation and the manner of payment...Thus, like the Appellate Division before this Court, the Court concludes in establishing and operating the ACP, respondents are not in violation of any state or county laws, and the documents, as written, do not infringe upon the court's inherent authority to provide assigned counsel in criminal cases. See Decision, Index Nos.: 2007-5138, 20078002, dated November 25, 2009.
This decision left no unanswered questions with regard to Mr. Parry's entitlement to the declaration sought nor whether this Court would issue the declaration sought. See Decision, Index Nos.: 2007-5138, 2007-8002, dated November 25, 2009.
Subsequent to the issuance of the November 25, 2009 decision of this Court, a proposed Order was submitted in keeping with said decision. That Order was signed on December 11, 2009, and was filed in the Office of the County Clerk on December 14, 2009. A copy of said Decision and Order are attached hereto and incorporated herein by reference and marked as Exhibit "D".
With the facts and procedural history of Mr. Parry's own personal litigation as against the County, ACP and OCBA in mind, the Court turns once again to the matter at bar, Cagnina v. County of Onondaga.
After oral argument was heard on the instant motion, the Court of Appeals issued its decision in the matter of Hurrell-Harring v. State of New Yorkas NY3d 8. As the Appellate Division, Third Department, decision in the Hurrell-Harring matter was argued in previous motion practice in Mr. Parry's own actions, this Court reviewed the Court of Appeals's decision to determine whether this holding would have any affect whatsoever on the plaintiff's request for declaratory judgment in this matter. It determines that the most recent decision in Hurrell-Harring does not. Here, the plaintiff is not an indigent defendant, but an attorney who previously represented the indigent through the ACP. There is no need for a separate declaratory judgment...
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