Matter of McInerney

[*1] Matter of McInerney 2009 NY Slip Op 50251(U) [22 Misc 3d 1123(A)] Decided on February 18, 2009 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2009
Sur Ct, Bronx County

In the Matter of the Estate of Michael George McInerney, Deceased.



2008-166/A



Michael J. McInerney, pro se, movant

Veronica H. Mandel, Esq., for Joan McInerney, preliminary executrix.

Lee L. Holzman, J.

The objectant in this probate proceeding, one of the decedent's five children who is incarcerated in Nevada, moves for the assignment of counsel in connection with his appeal of an order of this court, dated November 24, 2008, which granted preliminary letters testamentary to the decedent's spouse, the nominated executrix and sole beneficiary under the propounded will. All of the decedent's children are disinherited under the will. The application for preliminary letters was granted on the consent of the decedent's four other children and over the objections of the movant. In the underlying proceeding, the movant was granted poor person relief pursuant to CPLR 1101 which resulted in the waiver of filing fees for, inter alia, the filing of his objections and notice of appeal.

At the outset, the court notes that it has not appointed a guardian ad litem for the movant pursuant to SCPA 402 (2), as the movant's confinement has not prevented him from filing objections in this proceeding (see SCPA 103 [40]). The assignment of counsel is mandatory under various constitutional and statutory provisions where the state or government proceeds against the individual with risk of loss of liberty or grievous forfeiture, as the constitutional right to counsel and due process of law carries with it the provision of counsel if the individual is unable to provide it for himself or herself (see 3 Weinstein-Korn-Miller, NY Civil Practice, § 1102.01 at 11-43 and n 3-6 [2d ed] [citing, inter alia, Matter of Smiley, 36 NY2d 433, 437 [1975] and various statutes]). Otherwise, in civil cases, the court cannot compel the government to pay for counsel for an indigent because "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" (Matter of Smiley, 36 NY2d at 438; see also Planck v County of Schenectady, 51 AD3d 1283 [2008]).

SCPA 407 is one of the statutes that establish for the benefit of indigent litigants an absolute right to legal representation in certain circumstances (see Morgenthau v Garcia, 148 Misc 2d 900 [1990]; Matter of Matter of Romano, 109 Misc 2d 99, 100-101 [1981]). None of the circumstances which warrant the assignment of counsel pursuant to SCPA 407 are present in the instant application. Clearly, the appointment of counsel for an adult child of the decedent to provide representation in this proceeding in which he contests his father's will does not implicate issues involving a risk of loss of liberty or grievous forfeiture where the appointment of counsel is mandated by the constitution of this state or of the United States (see SCPA 407 [1] [b]).

CPLR 1102 codifies the discretionary ability of a court to assign counsel to a poor person, [*2]in which case, counsel is not compensated in the absence of a recovery (see CPLR 1102 [a], [d]; Donaldson v State of New York, 156 AD2d 290 [1989], lv denied 75 NY2d 1003 [1990]). Generally, in exercising its discretion, a court must, inter alia, review the facts set forth in the application to ensure that the merit of the contentions can be ascertained (see CPLR 1101 [a], 1102 [a]; see also Mizrack v Schwartz, NYLJ, June 8, 2006, at 23, col 1; Warmus v Heit, 2006 NY Slip Op 51603U, 12 Misc 3d 1197 [A]; Mark v Sobal, NYLJ, April 2, 1999, at 27, col 1; Slywotsky v Francko, NYLJ, Oct. 28, 1998, at 29, col 5; Morgenthau v Garcia, 148 Misc 2d at 903; Matter of Romano, 109 Misc 2d at 103). Even pursuant to CPLR 1102, equity must cry out for assistance to be provided to the movant before a court exercises its discretion in favor of appointing private counsel, who might not be compensated, for indigent competent parties in civil cases (see Warmus v Heit, 12 Misc 3d at 1197 [a]).

In his supporting affidavit, the movant failed to provide any facts which would enable the court to ascertain the merit of his contentions and, therefore, the motion is inadequate on its face (see Planck v County of Schenectady, 51 AD3d at 1283). Furthermore, even if the movant prevails in the will contest, the spouse will receive the first $50,000 of the estate, and the movant will receive 10% of the balance (see EPTL 4-1.1 [a] [1]). Given the value of the testamentary assets, it is highly unlikely that a distributee who has the means to retain an attorney could find one who willing to undertake representation under these circumstances. Consequently, even assuming, arguendo, that SCPA 407 does not set forth all of the circumstances under which a surrogate may assign counsel for a poor person and, therefore, SCPA 102 does not preclude the assignment of counsel pursuant to CPLR 1102 or that, in any event, the court has inherent power to call upon members of the bar to represent indigents where very important interests are at stake, this will contest is not one of those cases in which it would be appropriate for the court to exercise its discretion to grant the movant's application for the appointment of counsel.

Accordingly, this decision constitutes the order of the court denying the application for the assignment of counsel. The Chief Clerk shall mail a copy of this decision and order to the pro se movant and to counsel for the preliminary executrix.



SURROGATE