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DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition:

“In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence” … . “Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order” … .

Here, the defendant informed the Supreme Court on multiple occasions that he could not afford to retain an attorney. Therefore, prior to issuing an order of commitment, the court should have inquired into the defendant’s current financial circumstances to determine whether he had become eligible for assigned counsel … . Hoffman v Hoffman, 2023 NY Slip Op 04959, Second Dept 10-4-23

Practice Point: Here defendant was found in civil contempt for failure to pay child support. Because the judge was going to order jail-time, defendant had the right to assigned counsel if he could not afford an attorney. The judge should have conducted an inquest to determine defendant’s financial condition before issuing the order of commitment.

 

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THE CONSEQUENCES OF DEFENDANT’S WAIVER OF APPEAL WERE EITHER NOT EXPLAINED OR WERE WRONGLY EXPLAINED, THE WAIVER WAS INVALID, THE INITIAL COMMUNICATION BY THE POLICE OFFICER WAS NOT A LEVEL ONE DE BOUR INQUIRY, THE SWITCHBLADE DEFENDANT THREW AWAY WHEN THE COMMUNICATION WAS MADE WAS PROPERLY ADMITTED IN EVIDENCE (SECOND DEPT).
CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL.
ALTHOUGH DEFENDANT NEVER ANSWERED THE COMPLAINT, HE APPEARED BY MAKING A MOTION TO DISMISS AND PARTICIPATED IN THE LITIGATION, THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED; DISMISSAL OF THE ACTION FOR FAILURE TO INCLUDE A NECESSARY PARTY OR THE FAILURE TO JOIN OR SUBSTITUTE A PARTY WAS NOT WARRANTED (SECOND DEPT).
COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT.
DECEDENT’S WIFE’S CLAIM FOR DEATH BENEFITS BASED UPON DECEDENT’S WORK AT THE WORLD TRADE CENTER AFTER 9-11 IS SUBJECT TO THE TWO-YEAR DEADLINE FOR NOTICE IN WORKERS’ COMPENSATION LAW 28; BECAUSE THE NOTICE REQUIREMENT WAS NOT COMPLIED WITH, THE DEATH BENEFITS CLAIM WAS PROPERLY DENIED; THERE WAS A DISSENT (THIRD DEPT). ​
LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE.
IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

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