Parry v County of Onondaga

[*1] Parry v County of Onondaga 2009 NY Slip Op 52431(U) [25 Misc 3d 1236(A)] Decided on November 25, 2009 Supreme Court, Onondaga County Cherundolo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 25, 2009
Supreme Court, Onondaga County

Jeffrey R. Parry, Plaintiff,

against

The County of Onondaga; THE ONONDAGA COUNTY BAR ASSOCIATION, THE ASSIGNED COUNSEL PROGRAM, INC., Defendants.



JEFFREY R. PARRY, Plaintiff,

against

THE COUNTY OF ONONDAGA; THE ONONDAGA COUNTY BAR ASSOCIATION, THE ASSIGNED COUNSEL PROGRAM, INC., Defendants.



07-5138

John C. Cherundolo, J.

This is a motion for summary judgment brought by plaintiff - a practicing criminal defense attorney - Jeffrey R. Parry ("plaintiff" or "Mr. Parry"). Plaintiff's motion deals with Mr. Parry's original third cause of action, seeking a declaratory judgment action seeking to establish that the handbook of rules and procedures ("the Handbook"), for the Onondaga County Bar Association Assigned Counsel Program, Inc. ("ACP" or "defendant"), is "ultra vires, illegal, and a nullity", and that it is unconstitutional. The motion presently before this Court comes near the end of what has been an arduous motion practice to incrementally parse through plaintiff's original [*2]causes of action against a myriad of individuals and entities in plaintiff's efforts to procure payment for work performed under the ACP and for which he claims he was never compensated. The remaining defendants to this action, the ACP and the County of Onondaga ("County" or "defendant"), oppose this motion and cross-move for summary judgment and dismissal of plaintiff's claim.

For the following reasons, plaintiff's motion for summary judgment is DENIED, and defendants' cross-motion for summary judgment is GRANTED.

BACKGROUND

The County of Onondaga has implemented and funds an Assigned Counsel Program, which differs from a Public Defender system in several important ways. A Public Defender system is the counterpart to a district attorney's office in that criminal defense attorneys work for the Public Defender full-time and become specialized in certain areas of criminal law. Under the Assigned Counsel Program, ACP panel attorneys are essentially independent contractors and are reimbursed for representing the indigent clients to whom they are assigned. The Assigned Counsel Program may not be an attorney's sole source of income as attorneys commonly take on assigned cases in order to supplement the income they earn practicing in other areas of law. In fact, some ACP attorneys lack expertise in the areas of criminal defense to which they are assigned; however, the assigned attorneys provide an invaluable service while upholding the Sixth Amendment right to counsel for those who could not otherwise afford to defend themselves. The ACP panel attorneys earn far below market-value for their services and

make the assistance offered by the ACP a reality, at the same time providing a tremendous benefit to their community.

Under the ACP, attorneys are reimbursed through a voucher system. As of January 1, 2004, assigned attorneys are to be compensated at a rate of $60.00 (sixty dollars) per hour for misdemeanor cases, and $75.00 (seventy-five dollars) per hour for felony cases. This compensation rate is governed by statute, and is capped. Vouchers claiming an amount which exceeds the statutory cap are taken under special review. Furthermore, it is required that each voucher be submitted with certain other documentation provided by the assigned attorney in order to explain or support the attorney's billing practices. Plaintiff contends that there are numerous problems under the current system, including allegations of wrongdoing and purposeful non-payment. Plaintiff, here, claims that he has monies due and owing to him under the ACP.

Concerning to this Court are the contentions made by the plaintiff of purposeful wrongdoing, favoritism and claims of willful, gross negligent and/or purposeful actions by ACP that have a direct effect on the right to counsel for indigent defendants in criminal actions. Although the motion before this Court does concern plaintiff's causes [*3]of action for non-payment, several universal facts bear mentioning. First, Mr. Parry was allegedly removed from the ACP panel during the course of his representation of several indigent clients; yet plaintiff continued to provide his services while refusing to reconcile with the panel insofar as renewing his contract. The basis for his refusal to renew his contract gives rise to the cause of action underlying the instant motion. Plaintiff avers that he could not, in good conscious, sign a contract he deemed to be illegal. The question presented to this Court is whether the contract and handbook themselves are "illegal, ultra vires, and/or a nullity" and whether, as written, they must be deemed to be unconstitutional. Plaintiff asks that this Court consecrate his declaration; a request that this Court cannot agree.

THE STANDARD OF REVIEW FOR SUMMARY JUDGMENT

Summary judgment is a drastic remedy which shall be granted only when the movant has established that there are no triable issues of fact. Andre v. Pomeroy, 35 NY2d 361. Once the movant has established a prima facie entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof, in evidentiary form, establishing the existence of triable issues of fact or must demonstrate an acceptable excuse for its failure to do so. Zuckerman v. City of New York, 49 NY2d 557; Davenport v. County of Nassau, 279 AD2d 497; and Bras v. Atlas Construction Corp., 166 AD2d 401.

The function of the court in deciding a motion for summary judgment is to determine if triable issues of fact exist. Matter of Suffolk County Dep't of Social Services v. James M., 83 NY2d 178; and Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395. A motion for summary judgment should be denied if the court has any doubt as to the existence of a triable issue of fact. Freese v. Schwartz, 203 AD2d 513; and Miceli v. Purex Corp., 84 AD2d 562.

When deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and must give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence. Negri v. Stop & Shop, Inc., 65 NY2d 625; and Louniakov v. M.R.O.D. Realty Corp., 282 AD2d 657. However, mere conclusions of law or fact are insufficient to defeat a motion for summary judgement. Banco Popular North America v. Victory Tax Management, Inc., 1 NY3d 381.

Here, the plaintiff asks this Court to make a declaration by way of declaratory judgment, that the contract and handbook (as well as policies) are illegal, ultra vires and/or a nullity, and that they are, as written, unconstitutional.

STANDARD FOR DECLARATORY JUDGMENT

AND JUDICIAL REVIEW(CPLR §3001)

CPLR §3001 provides the statutory basis in New York for Declaratory Judgment Actions. That section authorizes the Court to enter a declaratory judgment, in addition to any other relief that may be available, declaring the rights and obligations of the parties to a justiciable controversy. This means that the controversy must be real and actual, not feigned. A declaratory judgment action cannot and should not be a request for an advisory opinion, but, rather, the issues to be resolved must be real, not of an academic interest and not based on some potential or conjectural events that may occur in the future. Weinstein, Korn & Miller, New York Civil Practice CPLR, Second Edition, Section 3001.00.

It has been said that the primary purpose of a Declaratory Judgment Action is to adjudicate the party's rights before a "wrong" actually occurs, and hope that later litigation will be unnecessary. Klostermann v. Cuomo, 61 NY2d 525. The primary purpose of making the requested declaration or declarations is to stabilize the legal relations and eliminate uncertainty as to the scope and content of present or prospective obligations, as long as such prospective obligations are real and can be determined. Goodman v. Reisch, 220 AD2d 383.

A Declaratory Judgment may not be had when an "actual controversy" is lacking. Barry v. Ready Reference Publishing Co., 25 AD2d 827. As a result, the words "justiciable controversy" were added to CPLR §3001 to reflect such past pronouncements of New York courts, and that statute otherwise codifies the statements made by the New York State Court of Appeals that there is a Constitutional requirement of an actual controversy between the adverse parties. MVAIC v. National Grange Mutual Insurance Co., 19 NY2d 115. The language of the statute also reflects that the courts are not empowered to render advisory opinions, or determine abstract, moot, hypothetical, remote, academic or conjectural questions. Hearst Corporation v. Klein, 50 NY2d 707; Zimmerman v. Abrams, 101 AD2d 691; Cutro v. Sheehan Agency, Inc., 96 AD2d 669; Concord Realty Co. v. New York, 30 NY2d 308; Square Parking Systems v. Metropolitan Transportation Authority, 92 AD2d 782; New York State Association of Insurance Agents, Inc. v. Schenck, 44 AD2d 757.

It is impossible for any court to harmonize all of the New York cases on the subject of "justiciability" since the courts, by virtue of the variegated situations brought before them in declaratory judgment actions, are forced into ad hoc determinations much of the time. The only pervasive characteristic is an insistence that the general purpose of the Declaratory Judgment Action be satisfied. Weinstein, Korn & Miller, New York Civil Practice CPLR, Second Edition, Section 3001.03.

In a Declaratory Judgment Action, the plaintiff must show that there is a valid interest in securing a declaration and present, in an adversary context, a controversy with the defendant concerning that interest. Krieger v. Krieger, 25 NY2d 364; Dicanio v. Incorporated Village of Nissequogue, 180 AD2d 223. Indeed, there must be some actual, genuine, live controversy, the decision of which can definitely effect existing legal relations. If the issue is not yet ripe for determination, or if no actual potential conflict can be established, or if all of the factors of a potential conflict are not yet in place, or if [*4]those facts may change by alteration and circumstances or otherwise, such issues cannot be determined by declaratory judgment. Hearst Corporation v. Clyne, supra; Wisholek v. Douglas, 97 NY2d 740. Borchard, Declaratory Judgments, 34-36, 2nd Edition, 1941.

To meet the test of justiciability, it is necessary to present the court with a controversy touching the legal relations of the parties that may affect an adverse interest from which harm is presently flowing or could flow in the future in absence of a Court determination of the party's rights. Town of Saranac v. Town of Plattsburg, 218 AD2d 866; Rice v. Cayuga Onondaga Health Care Plan, 190 AD2d 330. The controversy, to be ripe for declaratory judgment, must be capable of definitive and complete disposition and presented in an adversary context with a set of concrete facts. Town of Saranac v. Town of Plattsburg, supra; Dicanio v. Incorporated Village of Nissequogue, supra; Rosenzweig v. New York Surrogate's Court, 44 Misc 2d 1013. See also Weinstein, Korn & Miller, New York Civil Practice CPLR, 2nd Edition, Section 3001.05.

Chief Justice Hughes in Aetna Life Insurance Co. v. Hayworth, 300 U.S. 227, best described the elements of justiciable controversy as follows:

A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot...the controversy must be definite and concrete, touching the legal relations of the parties having adverse legal interest...it must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what law would be upon a hypothetical state of facts...where there is such a concrete case admitting of a immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.

Aetna Life Insurance Co. v. Hayworth,

300 U.S. at pp. 240-241.

Whether an "actual controversy" is presented is a question, that by its very nature, must be decided on an ad hoc basis. Engel v. Engel, 275 A.D. 14. Whether a case is a proper subject for Declaratory Judgment is determined by circumstances that exist when the issues are presented to the court, not when the action was instituted and not upon any hypothetical or conjectural circumstances that may exist in the future. Phelan v. City of Buffalo, 54 AD2d 262; Golden v. Zwickler, 394 U.S. 103.

By stating that the Supreme Court "may render a declaratory judgment", the drafters of CPLR §3001 emphasized the discretionary nature of the remedy of Declaratory Judgment. Morgenthau v. Erlbaum, 59 NY2d 143; Solomon Brothers v. West Virginia State Board of Investors, 152 Misc 2d 289. If the issuance of a declaration of rights in a particular case will serve the interests of convenience of the parties or the public, if there is a public interest involved, or if the court is satisfied that a grant of a [*5]declaratory judgment will serve some useful function, then the court should exercise its discretion and render declarations that detail and define interests and rights. Sometimes the exercise of discretion will invoke a detailed appraisal of the case, and other times such a detailed appraisal may not be necessary in light of other factors dealing with the case, including factors dealing with Collateral Estoppel, Res Judicata, Prior Actions Pending or other interests dealing with justiciable controversies that may not yet be ripe.

Where the action involves a question involving a public interest or an issue having wide-spread repercussions, or where questions of policy may become involved, such considerations may, in the right circumstances, lead a court to decline to hear actions seeking declarations and would obviate the need for such a declaration of interests or rights. Johnson v. Dunbar, 282 A.D. 720; Spat v. Feinberg, 18 Misc 2d 925; Glendon v. Glendon, 45 Misc 2d 855. In such cases, the case law is clear that the court's discretion, while exceedingly broad in determining whether to grant or refuse to grant declaratory relief, cannot be exercised in a totally arbitrary or capricious manner. Westchester Mortgage Co. v. Grand Rapids and Iona Railroad Company, 246 NY 194. The exercise of judicial discretion under CPLR §3001 should be accomplished in a reasoned manner, and if the court decides to refuse jurisdiction, the court should state its grounds and articulate its reasoning behind such refusal. CPLR §3001. For example, courts need not respond to a request for declaratory judgment if there is another action pending between the parties or if the issue has already been decided in another forum. Gardner v. Evans, 60 NY2d 781; Ithaca Textiles, Inc. v. Waverly Lingerie Sales Co., 24 AD2d 133; Berkule v. Feldman, 39 Misc 2d 250. See also, Note, Availability of a Declaratory Judgment When Another Suit Is Pending, 51 Yale Law Journal 511 (1942).

The court may also refuse to entertain a Declaratory Judgment Action when the issue will become effective only upon the occurrence of a future event that may or may not come to pass. Prashker v. United States Guarantee Co., 1 NY2d 584; United Water New Rochelle, Inc. v. City of New York, 275 AD2d 464; Park Ave. Clinical Hospital v. Cramer, 26 AD2d 613. Declaratory relief may be denied when the result would not terminate the dispute, or might increase the number of cases brought to determine similar issues, or perhaps result in a piecemeal determination of the litigation. The basic idea of a Declaratory Judgment Action must serve some utilitarian function to stabilize or clarify relationships between the parties before a court will hear and act upon it. Great American Insurance Co. v. Cochrane, 16 AD2d 151; Smith v. Western Telephone Company, 276 AD2d 210 See also Weinstein, Korn & Miller, New York Civil Practice CPLR, 2nd Edition, Section 3001.09(d).

In order for the court to consider a request for Declaratory Judgment, CPLR §3017(b) requires that the demand specify the rights and legal relations on which a declaration is requested, whether further relief is or could be claimed, and the nature of any further relief that is requested. The court is required to look to the pleadings submitted in the action to determine what the specific right or rights promote the requests in a Declaratory Judgment Action. Such requests will come in the Complaint that commences the Declaratory Judgment Action, any affirmative pleading throughout the case, and in any counterclaim, cross-claim, or third-party complaint. Spadanuta v. [*6]Incorporated Village of Rockville Center, 20 AD2d 799. The complaint must present facts in a definite, intelligible and concise manner so as to enable the court to determine if there is a justiciable controversy and, if so, to determine the universe of facts that make up the controversy. Bloom v. Mayor of New York, 35 AD2d 92; Lakeland Water District v. Onondaga County Water Authority, 24 NY2d 400; New York State Association of Insurance Agents, Inc. v. Schenck, 44 AD2d 757.

Once the court assumes jurisdiction of a declaratory judgment action via a motion or otherwise, it has the power to grant any relief, whether such relief was prayed for or not. Levy v. Blue Cross and Blue Shield, 124 AD2d 900; Reiner v. Prudential Insurance Company, 48 N.Y.S.2d 880. If the plaintiff is not entitled to relief, the court should retain jurisdiction and proceed to issue a declaration in favor of the party entitled thereto rather than dismiss the action outright, where the determination will effect the legal relations of the private parties. St. Lawrence University v. Trustees of Theological School of St. Lawrence University, 20 NY2d 317; East Brooklyn Savings Bank v. Leibner, 256 NY 596. The law has been clear that generally the court should make specific declarations of legal interests, but dismissal of such a request in a particular case can be, and often is, justified as an exercise of discretion. Sweeney v. Cannon, 23 AD2d 1; Bernkrant v. Temporary State Housing Rental Commission, 36 Misc 2d 507.

Further, CPLR §3017(a) authorizes the court to grant any relief appropriate to the proof, whether demanded or not. New York Association of Counties v. Axelrod, 191 AD2d 932.

So the question before the Court is whether the ACP contract and handbook themselves are illegal and ultra vires, and should be declared a nullity, and/or whether the way those documents are interpreted and acted upon by ACP are illegal and ultra vires. In either case, given appropriate findings, this Court can issue such declarations as may be necessary, or under appropriate circumstances, decline to give any declarations. This Court, at this stage of the proceeding, declines to make any declarations from the request of plaintiff. Based on the applicable case law of the Court of Appeals and Appellate Divisions, which this Court is constrained to follow.

Defendants set forth, inter alia, that the information requested by the ACP, in addition to the voucher form, does not require that the assigned attorney reveal information protected by the attorney-client privilege. Furthermore, defendants set forth that there is no provision or law which requires that all admitted attorneys must be considered qualified to serve as defense counsel in criminal cases and that the ACP has the authority to decide as such. Defendants further aver that the administrative scheme, published in the Handbook, and under which the vouchers are reviewed, is lawful and has been approved by the Administrative Law Judge. This approval, they contend, makes plaintiff's request meritless (citing, Levenson v. Lippman, 4 NY3d 280). The defense also contends that the prior decision by the Appellate Division in plaintiff's Article 78 claim, forecloses such a claim.

PLAINTIFF'S MOTION[*7]

As the plaintiff is the moving party in this motion for summary judgment, this Court must afford the defendants every reasonable inference that can be made from the evidence before it. This being the case, the defendants seek to raise several issues of fact and law as to the legality of the Handbook of ACP procedures, which they contend preclude the grant of plaintiff's motion, and justify judgment on their behalf dismissing the third cause of action in its entirety.

DISCUSSION

The defense claims that plaintiff's request for declaratory judgment, and thus its motion and the entire claim contained in the Third Cause of Action, are foreclosed by the opinion in the Appellate Division, Fourth Department, which emanated from plaintiff's Article 78 proceeding. Defense also contends that because the contract and handbook were approved by the administrative judge specifically, that the claim and request for declaratory judgment must fail.

Looking at defendants' first claim with regard to the Article 78 proceeding, clearly, in that case, the court found that the petition must be dismissed. The court further found that:

...the record establishes that the County, through its contract with the ACP, has met its obligation to place in operation a plan for the provision of assigned counsel to the persons charged with crimes or who otherwise are entitled to assigned counsel and who are financially unable to obtain counsel (see County Law, Section 722). The ACP sponsored by the Bar Association ... is statutorily authorized (see Section 722(3)). Such assigned counsel plans are "designed to facilitate and implement the court's exercise of its inherent power (to assigned counsel, inasmuch as such plans) serve to provide a constant, ready source of available counsel, to define the amount and source of (assigned counsel's) compensation and the manner of payment, citing Matter of Stream v. Beisheim, 34 AD2d 324.

The Appellate Division, Fourth Department went on to confirm that the ACP's assigned counsel plan has, in fact, been approved by the Chief Administrative Judge of the State of New York, pursuant to Section 722(2). The court thus concluded:

...we conclude that, in establishing and operating the ACP, respondents are not violating County Law Section 722 or otherwise infringing upon the court's inherent authority to provide assigned counsel in criminal cases, and that the petitioner has not established "a clear right to the relief sought."

Based on the language of the Appellate Division, the defense contends that the Appellate Division decision clearly precludes the type of relief requested by the plaintiff in this action, and otherwise precludes a decision that would invalidate the very ACP program which the Appellate Division upheld.

The defense further contends that this Court lacks jurisdiction to set aside the determination of the Chief Administrative Judge. By letter dated April 6, 2006, Chief [*8]Administrative Judge Lippman stated, in pertinent part, as follows:

I have received the proposed revised Onondaga County Bar Association Assigned Counsel Program, Inc., handbook of policies, rules and procedures (effective February 1, 2006) pursuant to Section 22 of the County Law...I hereby approve the proposed handbook of policies, rules and procedures for the Onondaga County Bar Association Assigned Counsel Program, Inc. (effective February 1, 2006).

(See Captor Affidavit, Exhibit "A").

The plaintiff, however, contends that the defendants are using the handbook, and otherwise adopting policies, rules and procedures that are inequitable to those clients to which the plaintiff and others similarly situated are assigned. In short, it is almost as though the plaintiff is not criticizing so much the handbook, rules and regulations, but the actual way in which the rules, regulations, policies and procedures are used by the responsible ACP administrators. In fact, most of the other claims that the plaintiff makes in each of the actions before this court deal with actions by ACP, which he alleges to show purposeful wrongdoing, negligence, and reckless indifference to the constitutional rights of indigent people alleged to be criminals.

Based on the law before this Court, this Court finds that it cannot condone or agree to issue a declaratory judgment that the ACP handbook, rules, policies and regulations, as written and as approved by the Chief Administrative Judge, are illegal, ultra vires and should be declared a nullity. As a result, this Court declines to make such a declaration.

Indeed, the plaintiff in this matter has not established "a clear right to the relief sought", and has not otherwise shown to this Court's satisfaction, that the rules, as approved, lead to constitutional deprivation of individual defendants.

In making this decision, this Court relies heavily upon Levenson v. Lippman, 4 NY3d 280, and makes the determination that the allocation of financial resources for the payment of assigned counsel is a concern for court administrators, and that Chief Administrator validly adopted the ACP plan pursuant to the authority delegated to him under 22 N.Y.C.R.R. 80.1. This Court finds that the Assigned Counsel plan is designed to facilitate and implement the court's exercise of its inherent power to deal with and monitor assigned counsel, inasmuch as such plan served to provide a constant, ready source of available counsel, to define the amount and source of compensation and the manner or payment. Matter of Stream v. Beisheim, 34 AD2d 324. Thus, like the Appellate Division before this Court, this Court concludes that in establishing and operating the ACP, respondents are not in violation of any state or county laws, and the documents, as written, do not infringe upon the court's inherent authority to provide assigned counsel in criminal cases.

Left to be determined in this case, is whether the activities of ACP, themselves, used the handbook, rules, regulations, policies and procedures in an ultra vires, illegal, and/or unconstitutional way. Plaintiff makes a myriad of claims alleging that the wrongful activities of ACP contributed to a host of Sixth Amendment violations to [*9]indigent defendants. While this Court has grave concern about whether or not such claims are, in fact, accurate, this Court, as a result of stare decisis based on previous case law, chooses to uphold the validity of the original documents approved by the Chief Administrative Judge, and look to the way that ACP actually carries out the mandates of County Law Section 722.

As a result, this Court finds no question of fact, and absolutely no reason to issue the declaration that plaintiff in this Declaratory Judgment Action seeks. Consequently, this Court declines to issue such a declaration.

DEFENDANTS' MOTION

The defendants are the moving party in this cross-motion for summary judgment seeking to dismiss plaintiff's claim; therefore, this Court must afford the plaintiff every reasonable inference that can be made from the evidence before it. This being the case, plaintiff seeks to raise several issues of fact and law as to the constitutionality of the procedures set forth in the ACP Handbook which preclude the grant of defendants' motion. A careful reading of the documents at issue, and a review of the adoptive language by the Chief Administrative Judge, leads this Court to an altogether different conclusion.

In light of the above, this Court readily adopts defendants' assertion that this Court lacks jurisdiction over plaintiff's Declaratory Judgment Action. The issues of constitutionality raised by the plaintiff go to the actions of the ACP administrators, not to the adopted handbook, policies, procedures and written regulations. It is there where the facts at issue involving strictly statutory provisions end and issues of constitutionality begin. It is there where the constitutional issues arise, that makes this action lie within the jurisdiction of this Court.

Plaintiff has set forth, inter alia, that the actions of ACP have reached beyond its authorized powers and impermissibly treads on the administrative and supervisory functions reserved to the courts by County Law Art. 18-b and NY Const. art. VI, § 28 when it categorizes attorneys as to the assignments they might receive; mandates and conducts Continuing Legal Education programs; and demands that assigned counsel produce confidential information in relationship to their indigent clients, particularly minors. Furthermore, plaintiff has set forth that the County and ACP violate, inter alia, contract law by denying compensation to assigned attorneys who have performed work under the ACP.

This Court finds that the plaintiff's gravamen here, and primary complaint, stands not with the handbook, and other written documents upon which ACP makes it determinations, but the way in which ACP operates, and whether such operations are ultra vires, illegal and otherwise unconstitutional. It is of great concern that such constitutional claims are made to this Court, and, obviously going forward, that will be a [*10]significant inquiry of future discovery and at trial.

CONCLUSION

Plaintiff is not, at this stage, without remedy for his causes of action seeking payment for the work he completed on behalf of indigent clients as an assigned attorney. Neither is he without recourse to pursue his allegations directed at the legality of the way in which the ACP Handbook is used by ACP Administrators.

This Court is acutely aware of the Third Department's decision in Kimberly Hurrell-Harring, et al v. State of New York, et al,66 AD3d 84,decided July 16, 2009. This Court is aware that the Hurrell-Harring matter has been appealed to the Court of Appeals, and the State recently has filed its brief and that matter is ready to be argued.

That case, much like this, seeks to overhaul of the Public Defense System. There, like here, constitutional issues surrounding the Sixth Amendment were prominent. The majority in that Court felt that such a "massive overhaul" of the Public Defense System must be done by the Legislature. In order to overturn decisions made by Chief Administrative Judge on Assigned Counsel Programs, this Court is in complete accord.

However, given the significant constitutional issues presented by the plaintiff (even if only anecdotedly in his papers), the actions of ACP must go on for further evaluation in this matter. At this point in the litigation, this trial jurist is compelled to agree with the majority in Hurrell-Harring and adopts that majority view in the decision in this case, recognizing that to be a 3-2 decision. The plaintiff cannot, and must not, be deprived of his day incourt against ACP with regard to the actions they have taken that might be outside the intent of both the law and the Administrative Judge's acquiescence to the documents from which they operate. Give the constitutional issues alleged to be present in the record before this Court, such claims as to the activities of ACP outside of the written documents from which they base, must be tried before a jury of their peers.

In conclusion, the plaintiff's motion for summary judgment seeking a declaratory judgment is DENIED, and the Court declines to issue such a declaration. Instead, the Court grants judgment dismissing plaintiff's cause of action seeking Declaratory Judgment.

The defendants' cross-motion for summary judgment, to the extent that it goes beyond the third cause of action and the declaration requested, is DENIED, pursuant to the law of Declaratory Judgments.

To the extent that all discovery is not yet complete, the parties are hereby directed to complete all discovery on all claims by February 1, 2010. It is important that all the discovery be totally and fully complete by February 1, 2010. There will be no other reasons or excuses to defer discovery in this matter. Plaintiff is to file a Note of Issue on or before February 1, 2010, or his actions will be dismissed. This matter will be set for trial once all discovery is complete and a Note of Issue has been filed by the plaintiff. [*11]

Counsel for the defendants is hereby directed to submit a proposed Order in keeping with the Decision, upon notice to the plaintiff, and attaching a copy of this decision thereto.

DATED: November 25, 2009.

/s/ John C. Cherundolo

Hon. John C. Cherundolo, A.J.S.C.