Department of Housing Preservation and Development of City of New York v. Lamison

• Decision Date: 07 March 1983
• Citation: 462 N.Y.S.2d 109,118 Misc.2d 1013
• Parties: DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. William P. LAMISON, Respondent.
• Court: New York City Court

Page 109

462 N.Y.S.2d 109

118 Misc.2d 1013

DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioner, v. William P. LAMISON, Respondent.

Civil Court of the City of New York Queens County, Housing Part.

March 7, 1983.

Neal Mann, Dept. of Housing Preservation & Development, New York City, for petitioner/landlord.

William P. Lamison, pro se.

JOHN A. MILANO, Judge.

ISSUE:

Is an indigent respondent landlord in a civil proceeding in Housing Court, facing punishment for contempt of court, entitled, as a matter of law, to "assistance of counsel" pursuant to the provisions of the 6th amendment and Article 1, section 6 of the Constitutions of the United States and the State of New York respectively?

This court answers the question in the affirmative.

PROCEEDINGS:

Department of Housing Preservation and Development moves by order to show cause pursuant to Section D26-53.07 of the Housing Maintenance Code of the City of New York, CPLR 5103 and Article 19 of the Judiciary Law, to punish the respondent landlord for criminal contempt of court (section 751 Jud.Law) by imprisonment for a definite period not to exceed 30 days and a fine of $250.00 for each separate contempt and for civil contempt of court by remand to and imprisonment in civil jail (section 774 Jud.Law) for each separate contempt in regard to the alleged failure of the said respondent landlord to comply with the order of this court entered on June 30th, 1982 and for such other and further relief as to this court may deem just, proper and equitable under the circumstances. The premises are located at 163-20 108th Avenue in Jamaica, in the Borough of Queens consisting of a multiple dwelling, with four apartment units with an assessed valuation of $11,800.00 and with tax arrears in the sum of $944.02 pending for the last four tax quarters. The respondent had entered into a consent order in which he agreed to correct certain violations at the subject premises by September 30th, 1982. The DHPD alleges that an inspection of these outstanding violations was made on November 26th, 1982 and that eleven violations remain uncorrected. DHPD further alleges that the refusal of the said respondent to obey said order, was calculated to and actually did defeat, impair, impede and prejudice the petitioner in its efforts to have the subject premises restored to minimum housing standards and that this refusal to obey said order was wilful. The respondent landlord appeared in court on the return day and stated that he was without an attorney, that he wanted an attorney to represent him and that he could not afford an attorney.

THE LAW:

In general, every defendant in a criminal case has the statutory and constitutional right to the assistance of counsel. People v. Cunningham, 1954, 2 Misc.2d 162, 134 N.Y.S.2d 212. People v. Blake, 1974, 35 N.Y.2d 331, 361 N.Y.S.2d 881, 320 N.E.2d 625; 6th Amendment U.S. Constitution; Art. 1, section 6, N.Y.State Constitution. And this right to assistance of counsel is inviolable and fundamental. People v. Settles, 1978, 46 N.Y.2d 154, 412 N.Y.S.2d 874, 385 N.E.2d 612.

And an indigent criminal defendant is entitled to receive substantially the same assistance of counsel as one who can afford to retain an attorney of his choice. People v. Gonzalez, 1979, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987, on remand 74 A.D.2d 928, 426 N.Y.S.2d 318. And although a state has a significant interest in investigating and prosecuting criminal conduct, that interest cannot override the fundamental right to an attorney guaranteed the New York State Constitution (Art. 1, section 6). People v. Rogers, 1979, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709. Thus, the requirement to provide counsel for criminal defendants derive from constitutional provisions; the underlying principle is that when state or government proceeds against an individual with risk of loss of liberty or grievous forfeiture, right to counsel and due process of law carries with it provision of counsel if the individual charged is unable to provide it for himself; however no similar constitutional or statutory provisions applies, generally, to private or civil litigation. Madeline G. v. David R., 1978, 95 Misc.2d 273, 407 N.Y.S.2d 414. Miller v. Gordon, 1977, 58 A.D.2d 1027, 397 N.Y.S.2d 500.

It is not disputed that the instant proceedings to punish for contempt are civil in nature rather than criminal. But the distinguishing and significant difference in substance between these proceedings and other civil or private actions is that if the respondent herein is found by this court to be in criminal and civil contempt of its order, said respondent may be deprived of his physical liberty. See N.A. Development Co., Ltd., et al., v. Carolyn Jones et al., 114 Misc.2d 896, 452 N.Y.S.2d 992, affirmed by the App.Term, 1st Dept. N.Y.L.J. November 4th, 1982, page 5, col. 1 and 2, which stated: "We note only that the same act can be both a

criminal and a civil contempt, and that petitioner Blume's personal liability for criminal and civil contempt of the order of May 13, 1981 is well established on this record. While civil contempt fines must be remedial in nature and effect (State of New York v. Unique Ideas, Inc., 44 N.Y.2d 345 [405 N.Y.S.2d 656, 376 N.E.2d 1301] ), punitive jailing for a civil contempt is permissible for a "reasonable time" not to exceed six months, where, as here, coercive imprisonment is not feasible (Judiciary Law section 774, subd. 1; compare King v. Barnes, 113 N.Y. 476 with Ditomasso v. Loverro, 242 App.Div. 190 ; see also, ...