Y.H. v. E.S.

• Decision Date: 11 July 2022
• Docket Number: Index No. 61743/2021
• Citation: 76 Misc.3d 398,173 N.Y.S.3d 837
• Parties: Y.H., Plaintiff, v. E.S., Defendant.
• Court: New York Supreme Court

76 Misc.3d 398

173 N.Y.S.3d 837

Y.H., Plaintiff,

v.E.S., Defendant.

Index No. 61743/2021

Supreme Court, Putnam County, New York.

Decided on July 11, 2022

David Ivan Bliven, White Plains, for defendant.

Anthony J. Pieragostini, Mount Kisco, for plaintiff.

Victor G. Grossman, J.

On the application of David Bliven, Esq., assigned counsel for defendant E.S., for an Order declaring unlawful the Court's assignment of counsel pro bono for indigent parties in matrimonial actions, and directing that he be relieved as counsel for Defendant, or alternatively, directing payment from the public purse for his services and fixing the prescribed hourly rate therefor, it is ORDERED that the application is disposed of as follows:

This is a matrimonial action. Both parties have been granted "poor person" relief pursuant to CPLR § 1101 and are represented by attorneys assigned on a pro bono basis pursuant to CPLR § 1102(a) and the 9th Judicial District program for assignment of counsel to indigent parties in matrimonial actions. By Order dated March 16, 2022, this Court, in its capacity as Supervising Judge for Matrimonial Cases in the 9th Judicial District, assigned David Bliven, Esq. to represent Defendant herein "without any compensation from Defendant, without prejudice to motion by counsel for compensation pursuant to CPLR § 1102(d), DRL § 237, Judiciary Law § 35, or otherwise as provided by law."

Mr. Bliven asserts that there is no basis in New York law for the assignment of counsel on a pro bono basis, and further, that his assignment herein without compensation is violative of his rights under the 5th, 13th and 14th Amendments to the United States Constitution. He accordingly seeks an order relieving him as attorney for the Defendant, or, alternatively, directing payment from the public purse for his services and fixing the prescribed hourly rate therefor. Because Mr. Bliven's application calls into question the lawfulness of the 9th Judicial District program for assignment of counsel to indigent parties in matrimonial actions, the Court directed that notice thereof be given inter alia to the New York State Attorney General's office and to the Westchester County Bar Association. The Attorney General responded, taking no position on the matter. The Bar Association filed no response.

THE 9th JUDICIAL DISTRICT PROGRAM FOR ASSIGNMENT OF PRO BONO COUNSEL IN MATRIMONIAL ACTIONS

The Supervising Judge for Matrimonial Cases in the 9th Judicial District administers this District's program for assignment of pro bono counsel in matrimonial actions. Among the salient elements of the program are the following:

• Parties to matrimonial actions may file a combined application for "poor person" relief and assignment of counsel pursuant to Article 11 of the Civil Practice Law and Rules.

• Some litigants file on their own, others with the assistance of one of the local legal services agencies. In either case, the application must satisfy the requirements of CPLR § 1101(a).

• As a general matter, indigent persons with income up to 200% of the Federal Poverty Guidelines are deemed eligible for the assignment of counsel. However, in determining whether to assign counsel, the Court considers all relevant circumstances, including the applicant's income, assets, expenses and family situation, and exercises its discretion pursuant to In re Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975). From February 1, 2022 to date approximately 150 assignments of counsel have been made through the program.

• Attorneys with significant experience in matrimonial cases are deemed eligible for assignment in the county wherein their office is located (or a contiguous county), and in counties where their court filings evidence a significant matrimonial practice. The roster of eligible attorneys is derived from recent RJI filings and other sources.

• To the extent possible, no attorney is tasked with more than one pro bono assignment at any given time. In the event an assigned attorney establishes that a prior assignment is still ongoing, the Court may issue an amended order relieving that attorney and defer further assignment until after the conclusion of the existing matter.

• The Court recognizes that a pro bono assignment may result in the imposition of an undue burden in circumstances including a more-than-usual crush of business; impending retirement or transition in legal practice; recent completion of another pro bono assignment; sickness; family issues; etc. The Court readily accommodates attorneys in such circumstances by deferring assignment or, if appropriate, removing them from the roster of those eligible for assignment.

• Attorneys who complete a pro bono assignment are entitled to CLE credit therefor.

NEW YORK LAW REGARDING ASSIGNMENT AND COMPENSATION OF COUNSEL FOR INDIGENT PERSONS

Article 11 of the Civil Practice Law and Rules is entitled "Poor Persons." CPLR § 1101(a) provides that the court in which an action is triable may grant any person permission "to proceed as a poor person" therein. CPLR § 1102(a) provides that "[t]he court in its order permitting a person to proceed as a poor person may assign an attorney." Section 1102(a) authorizes the assignment of counsel to indigent parties in matrimonial actions. See, In re Smiley, 36 N.Y.2d 433, 440, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975) ; Jacox v. Jacox, 43 A.D.2d 716, 717, 350 N.Y.S.2d 435 (2d Dept. 1973) ; Medina v. Medina, 109 A.D.2d 691, 487 N.Y.S.2d 23 (1st Dept. 1985). CPLR § 1102(d) further provides that "[a] poor person shall not be liable for the payment of any costs or fees unless a recovery by judgment or by settlement is had in his favor in which event the court may direct him to pay out of the recovery a reasonable sum for the services and expenses of his attorney" Article 11 makes no other provision for the compensation of the assigned attorney.

The New York legislature has authorized compensation of counsel for indigent persons from the public purse in specifically defined circumstances. Judiciary Law § 35 establishes a statutory right to counsel for indigent persons in a variety of cases, including habeas corpus; commitment, custody or adoption proceedings; criminal proceedings; Family Court proceedings wherein the party is entitled to counsel pursuant to the Family Court Act; Surrogate's Court proceedings wherein the party is entitled to counsel pursuant to the Surrogate's Court Procedure Act; and proceedings under Article 10 of the Mental Hygiene Law. In such cases, the statute provides that "[a]ll expenses for compensation and reimbursement under this section shall be a state charge to be paid out of funds appropriated to the administrative office for the courts for that purpose." Judiciary Law § 35(5).¹

So far as may pertain to matrimonial actions in Supreme Court, Judiciary Law § 35(8) states:

Whenever Supreme Court shall exercise jurisdiction over a matter which the Family Court might have exercised jurisdiction had such action or proceeding been commenced in Family Court or referred thereto pursuant to law, and under circumstances whereby, if such proceedings were pending in Family Court, such court would be required by Section 262 of the Family Court Act to appoint counsel, Supreme Court shall also appoint counsel and such counsel shall be compensated in accordance with the provisions of this section.

Family Court Act § 262(a) in turn establishes a statutory right to the assistance of counsel in child custody and visitation proceedings (see, id., subdivision [v]), and contempt proceedings (see id., subdivision [vi]). However, matrimonial litigants are accorded no such statutory right to counsel on the financial issues — equitable distribution, maintenance, child support, etc. — by Judiciary Law § 35, the Family Court Act, County Law § 722 et seq. or otherwise. There is of course a constitutional right to counsel in some circumstances, and Family Court Act § 262(b) further provides:

In addition to the cases listed in subdivision (a) of this section, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of the state of New York or of the United States, and includes such determination in the order assigning counsel.

As a general matter, however, there is no constitutional right to assigned counsel in matrimonial actions. See, In re Smiley, supra, 36 N.Y.2d 433, 439-440, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975).

Consequently, where an attorney is assigned pursuant to CPLR § 1102(a) as counsel for an indigent matrimonial litigant, compensation for his services is authorized (1) from the client, pursuant to CPLR § 1102(d), out of his/her recovery (if any) in the matrimonial action; (2) from the client's adversary, pursuant to Domestic Relations Law § 237, to the extent that an award of attorney's fees is available under the terms of that statute (see, e.g., O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999)) ; and/or (3) from the public purse, pursuant to Family Court Act § 262(a) and Judiciary Law § 35(8), insofar as the attorney's services are rendered in connection with child custody/visitation proceedings and contempt proceedings — but not otherwise. In the absence of statutory authorization for the expenditure of funds for assigned counsel, New York courts are without power to direct that compensation for assigned counsel's services be paid from the public purse. See, In re Smiley, supra, 36 N.Y.2d at 438, 369 N.Y.S.2d 87, 330 N.E.2d 53 ; Application of Sullivan, 297 N.Y. 190, 195-196, 78 N.E.2d 467 (1948) ; People ex rel. Ransom v. Niagara County Sup'rs, 78 N.Y. 622 (1879) ; People ex rel. Hadley v. Albany County Sup'rs, 28 How. Pr 22 (1864) ; Jacox v. Jacox, supra, 43 A.D.2d at 717, 350 N.Y.S.2d 435 ; Matter of Enrique R., 126 A.D.2d 169, 175, 512 N.Y.S.2d 837 (1st Dept. 1987) ; Wood v. Cordello, 91 A.D.2d 1178, 1179, 459 N.Y.S.2d 150 (4th Dept. 198...