Matter of Mark S.
Annotate this CaseDecided on December 6, 2005
Nassau County Court
In the Matter of the Appointment of Alan M. Parente, Esq., as Temporary Guardian of Mark S., a Person in Need of a Guardian.
280XX-I-05
Joel K. Asarch, J.
Following a hearing held before the undersigned on September 29, 2005, and on the consent of MARK S., this Court found MARK S. to be a Person in Need of a Guardian pursuant to Section 81.02(a) of the Mental Hygiene Law, and appointed ALAN M. PARENTE, ESQ. as Temporary Guardian of MARK S., pursuant to an Order Appointing Temporary Guardian, dated October 11, 2005, with specified authority therein;
And pursuant to such authority, the Temporary Guardian was authorized to conduct depositions of witnesses with regard to the sale of MARK S.'S interest in and to real property located in Valley Stream, New York.
At the request of DAVID A. SMITH, ESQ., the Court Evaluator appointed in the underlying Guardianship proceeding, a Judicial Subpoena was issued to one, IRIS L., dated September 22, 2005, directing her appearance and testimony on September 29, 2005; to provide documentation with regard to the real estate transaction(s) entered into on behalf of the said Person in Need of a Guardian; and to provide information regarding the collection and distribution of his assets by said witness. The Court continued the Subpoena at the hearing on September 29, 2005, as the witness' testimony was not required to appoint a guardian for MARK S.; however, her testimony was still required in connection with the investigation into the closing of title to the aforementioned real property. At said hearing on September 29, 2005, the Court directed MS. L. to appear on October 17, 2005 to be deposed, and urged her to retain counsel to represent her interests.
IRIS L. appeared at the Courthouse on October 17, 2005, but refused to answer questions posed to her by the Temporary Guardian on the grounds that she "was denied counsel and legal representation" (transcript, page 5) and contended that her "constitutional rights were being violated" (transcript, page 6). Upon inquiry, MS. L. indicated that she had consulted with an attorney but she deemed both his retainer amount and hourly rate to be beyond her financial means. Following the attempted deposition pursuant to Mental Hygiene Law Section 81.43, IRIS L. appeared before this Court and stated on the record the reasons for her refusal to cooperate, repeated her insistence the she was entitled to counsel, and requested that the Court appoint counsel for her (and at no expense to her). MS. L. indicated to the Temporary Guardian that she earns approximately ONE THOUSAND TWO HUNDRED ($1,200.00) DOLLARS per month working for a collection firm, and confirmed same on the record before this Court. [*2]
This Court can find no basis in either case law or statutory law for providing legal representation as of right to a witness called in an civil proceeding. Accordingly, the Court's attention must turn to the well-established canon of both state and federal case law regarding the rights of parties to a proceeding to be afforded legal counsel.
When, in a criminal matter, "the State or Government proceeds against the individual with risk of loss of liberty or grievous forfeiture, the right to counsel and due process of law carries with it the provision of counsel if the individual charged is unable to provide it for himself (citations omitted). No similar constitutional or statutory provision applies to private litigation." Matter of Smiley, 36 NY2d 433, 437, 369 N.Y.S.2d 87 (1975) (emphasis added); see also Matter of St. Luke's-Roosevelt Hospital Center, 159 Misc 2d 932, 607 N.Y.S.2d 574 (Sup.Ct. NY County (1993)) modified and remanded 215 AD2d 337, 627 N.Y.S.2d 357 (1st Dept. 1995). Although the right to counsel grew forth from the area of criminal practice where the conviction of a Defendant may well result in the loss of individual liberty, the Court recognizes that this right has been extended "to a large number of quasi-criminal and civil proceedings." Matter of St. Luke's-Roosevelt Hospital Center, supra at 934 (e.g. involuntary administration of psychotropic medications; neglect proceeding involving loss of child custody; termination of parental rights; revocation of probation proceedings; and involuntary commitment to a mental institution). However, the outcome of those civil proceedings specifically pose a direct threat to the "physical liberty" of the Defendant/Respondent and/or jeopardize certain of his or her "liberty interests", and therefore warrant the appointment of counsel to protect the individual who is the subject of such proceeding. Id at 935-936.
In this matter, the Temporary Guardian is charged with investigating the possible conversion and/or distribution of sums in excess of TWO HUNDRED TEN THOUSAND ($210,000.00) DOLLARS belonging to MARK S., which allegedly was given by check made directly payable to IRIS L. at the closing on or about January 20, 2004. An issue exists concerning her authority either individually or acting under a purported Power of Attorney with respect to the utilization of said funds. A discovery proceeding pursuant to Mental Hygiene Law Section 81.43 is an appropriate and sanctioned discovery vehicle for such investigation. In this context, MS. L., while clearly the "subject" of the deposition and investigation, is not the subject of the underlying Mental Hygiene Law proceeding. She is merely a witness thereto. While it is true that negative implications or facts may come to light during the course of the deposition of the witness, the same can be said of any deposition. This proceeding in and of itself does not pose an immediate risk or danger to MS. L.'S physical liberty or liberty interests.
IRIS L. has been called as a witness in a civil proceeding in which she is being deposed regarding her knowledge of the location and/or distribution of the sale proceeds, the only assets of MARK S., a Person in Need of a Guardian. This Court knows of no authority to appoint counsel at public expense for such witness. In fact, Article 81 of the Mental Hygiene Law provides for the appointment of counsel only for an individual who is the subject of the proceeding, to wit: the Alleged Incapacitated Person (Section 81.10) and for the Guardian of such individual (Rules 36 of the Chief Judge of the State of New York). The potential repercussions which may stem from this discovery proceeding do not trigger the necessity or right to the appointment of counsel at public expense for this witness. See e.g., Miller v. Gordon, 58 AD2d 1027, 397 N.Y.S.2d 500 (4th Dept. 1977). Should certain evidence be disclosed upon which a potential and future criminal prosecution is pursued, at such time, MS. L., as the subject of that proceeding, may be entitled to legal representation at public expense and may exercise her rights accordingly. Otherwise, "any expansion of right to counsel at public expense in private litigation" is within the domain of the Legislature, and not the Courts. Id.; see also Matter of Smiley, supra, at 439.
While this Court has the discretion to appoint counsel in a civil proceeding pursuant to CPLR Section 1102, such appointments should only be done in a "proper case" and in connection with an appropriate application by a party to proceed as an indigent person. Matter [*3]of Smiley, supra, at 441. The Court does not find that the underlying facts of this case meet the criteria and do not warrant the appointment of counsel.
In Morgenthau v. Garcia, 148 Misc 2d 900, 561 N.Y.S.2d 867 (Supreme Court, New York County 1990), Justice Phyllis B. Gangel-Jacob issued sage advice to the Defendant, which bears repeating: "This Defendant has the same options available to [her] as are available to other indigent civil litigants. [S]he may attempt to retain private counsel to represent [her] in this case ... [she] may request legal assistance by communicating with the Bar of this state whose members pro bono publico may agree to represent [her] free of charge in this matter; [she] may also request legal assistance from other voluntary or government-funded legal organizations of this state". Id at 904-905. These avenues are available to MS. L. as well. Finally, as MS. L. has advised that she is employed by a collection entity, an attorney associated therewith may be willing to assist her with securing representation, as well as advising her of her rights and obligations.
Based upon the foregoing, the application of IRIS L. for the appointment of counsel at public expense or pro bono publico is hereby denied in its entirety. MS. L. shall appear before the Court on December 21, 2005 at 9:30 a.m. to continue the Mental Hygiene Law Section 81.43 discovery proceeding. Any failure to comply with the Judicial Subpoena issued on September 22, 2005 shall remain punishable as contempt of court.
IRIS L. is again advised to seek counsel of her own choosing to represent her interests in this proceeding.
E N T E R :
____________________________________
JOEL K. ASARCH
Acting County Court Judge
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