Hurrell-Harring v. State

• Decision Date: 01 July 2010
• Parties: Kimberly HURRELL-HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, v. STATE of New York et al., Appellants.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 334
75 A.D.3d 667

Kimberly HURRELL-HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Respondents,
v.
STATE of New York et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

July 1, 2010.

905 N.Y.S.2d 334

Andrew M. Cuomo, Attorney General, Albany (Victor Paladino of counsel), for appellants.

Shulte, Roth & Zabel, L.L.P., New York City (Gary Stein of counsel) and Corey Stoughton, New York Civil Liberties Union Foundation, New York City, for respondents.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and McCARTHY, JJ.

KAVANAGH, J.

75 A.D.3d 667

Appeal (upon remittal from the Court of Appeals) from an order of the Supreme Court (Devine, J.), entered August 12, 2008 in Albany County, which denied a motion by defendant State of New York to declare the attorney-client privilege waived as to certain of the named plaintiffs, among others.

75 A.D.3d 668

Plaintiffs, individuals who had been assigned public defenders to represent them in their various criminal proceedings, commenced this putative class action alleging that the public defense system as presently

905 N.Y.S.2d 335

constituted posed an unacceptable risk to indigent criminal defendants and was, in effect, resulting in a systematic denial of their constitutional right to counsel. In that regard, plaintiffs sought an injunction requiring defendant State of New York to take steps ensuring that indigent defendants charged with crimes are provided with legal services consistent with those constitutional guarantees. The State moved to dismiss the complaint claiming, among other things, that it failed to state a cause of action and, by order to show cause, sought an order declaring that plaintiffs and nonparty plaintiffs had waived the attorney-client privilege by submitting affidavits alleging numerous deficiencies in the representation they received from their assigned counsel.

In separate orders, Supreme Court conditionally denied the motion to dismiss, and denied the motion seeking a declaration that plaintiffs had waived the attorney-client privilege. Defendants appealed from both orders and this Court, in granting the State's motion to dismiss, also dismissed as academic their appeal from an order denying the motion to declare the attorney-client privilege waived (66 A.D.3d 84, 92, 99, 883 N.Y.S.2d 349 [2010] ). The Court of Appeals subsequently modified this Court's decision, reinstated a portion of the complaint, and remitted the...