Hurrell-Harring v. State

• Decision Date: 19 December 2013
• Citation: 977 N.Y.S.2d 464,2013 N.Y. Slip Op. 08503,112 A.D.3d 1213
• Parties: Kimberly HURRELL–HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v. STATE of New York et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1213
977 N.Y.S.2d 464
2013 N.Y. Slip Op. 08503

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

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

Dec. 19, 2013.

[977 N.Y.S.2d 465]

Schulte Roth & Zabel, LLP, New York City (Kristie M. Blase of counsel) and Corey Stoughton, New York Civil Liberties Union Foundation, New York City, for appellants.

[977 N.Y.S.2d 466]

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.

Before: PETERS, P.J., LAHTINEN, SPAIN and EGAN JR., JJ.

PETERS, P.J.

Appeal from that part of an order of the Supreme Court (Devine, J.), entered December 14, 2012, which denied plaintiffs' motion to withdraw certain plaintiffs as named class representatives.

Plaintiffs, 20 indigent persons who were represented by assigned counsel in various criminal cases pending in Onondaga, Ontario, Schuyler, Suffolk and Washington Counties (hereinafter collectively referred to as the counties), commenced this action in 2007 alleging that the current public defense system is systemically deficient and has functioned to deprive them and similarly situated indigent criminal defendants in the counties of their constitutional right to counsel. This litigation has been before us on three prior occasions (81 A.D.3d 69, 914 N.Y.S.2d 367 [2011], 75 A.D.3d 667, 905 N.Y.S.2d 334 [2010], 66 A.D.3d 84, 883 N.Y.S.2d 349 [2009], mod.15 N.Y.3d 8, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ).¹ When this matter was last before us, we reversed Supreme Court's denial of plaintiffs' motion for class certification and certified a class of “[a]ll indigent persons who have or will have criminal felony, misdemeanor, or lesser charges pending against them in New York state courts in [the counties] who are entitled to rely on the government of New York to provide them with meaningful and effective defense counsel” ( 81 A.D.3d at 71, 914 N.Y.S.2d 367). At the time, the parties were in the midst of several years of discovery, and depositions of 12 of the 20 class representatives were thereafter conducted between May and September 2012.

In October 2012, plaintiffs moved to withdraw eight of the 20 class representatives as plaintiffs in this action. Plaintiffs Edward Kaminski and Ricky Lee Glover submitted affidavits stating that they were no longer able to serve in that capacity. Plaintiffs' counsel averred that Kaminski's medical condition rendered him unable to perform his duties as a class representative, and that personal circumstances interfered with Glover's ability to adequately serve as a class representative. As for the other six class representatives seeking withdrawal, counsel stated that they had failed to maintain contact with or acknowledge communications from her office in recent years, and submitted an affidavit from a paralegal documenting the diligent, albeit unsuccessful, efforts to communicate with those class representatives. Defendants State of New York and Governor Andrew Cuomo (hereinafter collectively referred to as defendants) opposed the motion, claiming that they would be prejudiced by the withdrawal of eight of the class representatives at such stage of the litigation. Supreme Court granted the motion as to Kaminski, but denied the motion as to the other seven class representative plaintiffs who sought to withdraw. Plaintiffs appeal.

Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217(b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.” While the decision to grant such an application is generally

[977 N.Y.S.2d 467]

committed to the sound discretion of the trial court ( see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 [1982] ), a party cannot ordinarily be compelled to litigate and, absent special circumstances—such as prejudice to a substantial right of...