Garner v. Garner

• Decision Date: 11 February 1969
• Citation: 297 N.Y.S.2d 463,59 Misc.2d 29
• Parties: Sylvia GARNER, Plaintiff, v. William GARNER, Defendant.
• Court: New York Supreme Court

Page 463

297 N.Y.S.2d 463

59 Misc.2d 29

Sylvia GARNER, Plaintiff, v. William GARNER, Defendant.

Supreme Court, Special Term, Kings County, Part V.

Feb. 11, 1969.

The Legal Aid Society, Borough of Manhattan, Mary B. Tarcher, New York City, for plaintiff; by Susan B. Lindenauer, New York City, of counsel.

William Garner in pro. per.

MEMORANDUM

CARMINE A. VENTIERA, Justice.

The plaintiff-wife has instituted an action for divorce on the ground that her husband, the defendant, has been confined in prison for a period of three or more consecutive years after their marriage (Domestic Relations Law sec. 170, subd. (3)). Defendant, a convicted felon, is presently serving a sentence of 15 to 20 years in Clinton Prison for robbery, and has served more than three (3) consecutive years of said sentence. There has been mailed to the court, by the defendant, an affidavit entitled 'Opposition to an Action for a Divorce.' The court will consider the affidavit as an answer to the complaint and a counterclaim for divorce. The affidavit requests the assignment of counsel to represent him in the divorce action; that he be permitted to be present at the proceedings; to appoint a doctor to examine plaintiff to determine if she is pregnant. The plaintiff's papers in opposition ask the court to strike defendant's counterclaim and deny the defendant's motion to be present at the proceeding.

It has been held that a prisoner has the right to defend a civil suit brought against him while he is in jail (Avery v. Everett, 110 N.Y. 317, 18 N.E. 148, 1 L.R.A. 264; Bowles v. Habermann, 95 N.Y. 246; Matter of Weber's Estate, 165 Misc. 815, 1 N.Y.S.2d 809). Defendant-husband, accordingly, has the legal right of appearing through counsel in defense of the action. Should the court assign counsel to the imprisoned defendant? It has been held that the court has inherent power apart from statute to assign counsel for defense of an indigent person charged with a crime (People v. Price, 262 N.Y. 410, 187 N.E. 298). The court upon motion brought may grant permission for a defendant to proceed as a poor person in a civil proceeding (CPLR 1101), and has discretion to assign an attorney upon granting such leave (CPLR 1102(a)). Lacking a factual showing here that defendant is a poor person, the court will not assign counsel. However, defendant can communicate with any of the following organizations who may provide him with legal counsel:

Brooklyn Bar Association

123 Remsen Street, Brooklyn, N.Y. 11201

Community Action for Legal Services, Inc.

80 William Street, New York, N.Y. 10038

Brooklyn Legal Services Corporation

503 Pennsylvania Avenue, Brooklyn, N.Y. 11207.

Should the defendant be present at the proceedings? The counterclaim is a cause of action by the defendant against the plaintiff (CPLR 3019(a)). The Civil Rights Law section 79, 'suspends, during the term of the sentence, all the civil rights * * * of, or held by, the person sentenced * * *.' (See also CPLR 208) This defendant is...