Hotel Martha Washington Management Co. v. Swinick

• Decision Date: 16 June 1971
• Parties: HOTEL MARTHA WASHINGTON MANAGEMENT CO., Petitioner-Landlord-Respondent, v. Frances SWINICK, Respondent-Tenant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 139

322 N.Y.S.2d 139

66 Misc.2d 833

HOTEL MARTHA WASHINGTON MANAGEMENT CO., Petitioner-Landlord-Respondent, v. Frances SWINICK, Respondent-Tenant-Appellant.

Supreme Court, Appellate Term First Department.

June 16, 1971.

Leo E. Panzirer and Donald J. Swords, New York City, for respondent.

Frances Swinick, appellant in pro per.

Before LUPIANO, J.P., and MARKOWITZ and GOLD, JJ.

MARKOWITZ, Justice.

Special Term denied in all respects tenant's application 1) for leave to defend the proceeding and to prosecute her counterclaims as a poor person, by jury of twelve; 2) for an order directing the clerk of the court below to waive fees and to place the proceeding on the jury calendar; 3) for permission to serve subpoenas upon witnesses and subpoenas duces tecum for records, without payment of fees; 4) for an order governing the manner of serving the subpoenas and requiring the witnesses to attend on adjourned dates of the proceeding, without payment of fees; and 5) for the assignment of counsel.

Notwithstanding that tenant is on welfare, Special Term held that tenant had not complied with CPLR § 1101 in that she had failed to state her income and list her property, with its value. It also held that tenant had failed to include evidentiary facts sufficient to show a meritorious defense and a good counterclaim.

Tenant made a prima facie showing of indigency by her affidavit stating she was a recipient of public assistance and was without assets; and her sworn denial that she owed any rent was a sufficient showing of merit to support the motion. It was therefore error to deny her application for leave to defend as a poor person (CPLR 1101).

As a poor person, she may not be required to pay a jury fee (CPLR 1102(d)).

While no provision of law exempts a poor person from paying a witness his fee (CPLR 2303, 2305, 8001; CCA, § 1913), failure to provide for payment of such fees by the city or county would deny an indigent party effective and equal access to the courts (Boddie, et al. v. State of Connecticut, et al. 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113; Jeffreys v. jeffreys, 58 Misc.2d 1045, 296 N.Y.S.2d 74).

However, tenant failed to make known to the court below which witnesses she sought to subpoena. As to public agencies, the court may direct obedience to the subpoena without fee (CPLR 1102(d)). As to other witnesses, there is no showing in the record of need for these witnesses (see: People ex rel. Baumgart v. Martin, 9 N.Y.2d 351, 214 N.Y.S.2d 370, 174 N.E.2d 475; Slawek v. United States, 8 Cir. 413 F.2d 957). The portion of tenant's motion dealing with subpoenas is accordingly remanded for disposition by the court below.

As to the appointment of counsel for appellant, subdivision (a) of CPLR § 1102 provides that 'the court in its order permitting a person to proceed as a poor person may assign an attorney.' Court decisions under the similar predecessor provision of the Rules of Civil Practice held that failure to assign counsel made the order defective (Hawkins v. Hotel Statler, 258 App.Div. 818, 15 N.Y.S.2d 719; Schechter v. Lichtenstein, 223 App.Div. 60, 61, 227 N.Y.S. 245; Pankawicus v. Nichols Copper Co., 169 App.Div. 419, 420, 155 N.Y.S. 123, 124). On the other hand, the Sixth Report to the Legislature calls attention to the use of the word 'may' in subdivision (a) of CPLR § 1102 and the intent to make appointment of an attorney discretionary (6th Report, Leg., Dec. 1962 #8, p. 173). Be that as it may, the right of an indigent tenant to assigned counsel under the 14th Amendment of the U.S. Constitution, to defend his right to remain in possession of his dwelling is forcefully indicated by recent rulings of the United States Supreme Court (Boddie v. State of Connecticut, Supra, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113; Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; see also: Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Jeffrey v. Jeffrey, Supra; Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453).

Absent counsel, there is evident possibility of unfairness in the disparate expertise of landlord's attorney and that of the tenant appearing in person.

As Mr. Justice Harlan wrote for the United States Supreme Court in Boddie v. State of Connecticut, Supra, 91 S.Ct. at 785:

'Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Early in our jurisprudence, this Court voiced the doctrine that '(w)herever one is assailed in his person or his property, there he may defend.' Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914 (1876).'

Mr. Justice Douglas, concurring, observed (91 S.Ct. 789):

'Griffin has had a sturdy growth. 'Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution.' Roberts v. La Vallee, 389 U.S. 40, 42, 88 S.Ct. 194, 196, 19 L.Ed.2d 41.'

He noted thereafter (p. 790):

'Here the invidious discrimination is based on one of the guidelines: Poverty.'

As a 'matter of simple justice, no indigent defendant should be subjected to * * * consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.' (Rodriguez v. Rosenblatt, Supra, 58 N.J. 281, 277 A.2d 216).

If, however, counsel is available to tenant through a public or semipublic agency, tenant should be relegated to such an agency (People ex rel. Baumgart v. Martin, 9 N.Y.2d 351, 214 N.Y.S.2d 370, 174 N.E.2d 475, Supra; Slawek v. United States, 8 Cir., 413 F.2d 957, Supra).

The issue of assignment of counsel is accordingly also remanded to the court below, to explore the...