Opinion
200628/09.
Decided March 22, 2010.
Schlissel Ostrow Karabatos, Attorney for Plaintiff, Garden City, NY.
Jesse Yarborough, Pro Se, United States Penitentiary, Adelanto, CA.
The plaintiff commenced this action on or about June 3, 2009 by the filing of a Summons and Verified Complaint seeking a judgment of divorce pursuant to DRL § 170(3) alleging the defendant has been incarcerated in excess of three (3) years during their marriage. On or about June 17, 2009, the defendant interposed an unverified document entitled "Response to Action for Divorce" which this court interprets as defendant's Answer.
DRL § 170(3) Action for divorce
An action for divorce may be maintained by a husband or wife to procure judgment divorcing the parties and dissolving the marriage on any of the following grounds.
(3) the confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
On or about November 20, 2009, the plaintiff served a Notice of Motion for summary judgment, pursuant to CPLR 3212 requesting that this Court grant the plaintiff a judgment of divorce pursuant to DRL § 170(3) as the defendant, plaintiff's husband, has been incarcerated in a federal penitentiary serving an eleven (11) year sentence since 2005 and has been continuously and actually confined in prison since June 29, 2005. Plaintiff also alleges that the parties were married in New York on May 15, 1993.
The defendant has submitted several unsworn letters to the Court, acknowledging his incarceration in the U.S. Penitentiary in California and requesting that this Court declare him a poor person and assign counsel to represent him. Since all of defendant's letters (except one) are dated December 2009 through January 2010 (subsequent to plaintiff's Motion for Summary Judgment dated November 20, 2009), this Court has interpreted these letters as the defendant's opposition to plaintiff's motion. However, notwithstanding the numerous unsworn letters this Court has received from the defendant, nowhere in any of the letters does the defendant deny or dispute that he has been and still is incarcerated in a U.S. Penitentiary for a period in excess of three (3) years during his marriage with the plaintiff.
In order to obtain summary judgment, movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law ( Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-1068, 416 NYS2d 790, 390 NE2d 298). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (see, Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718 , supra). "[M]ere conclusions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose ( Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 718 , supra).
It is well settled that the Court has the power to grant summary judgment where there are no facts in dispute. See, Storozynski v. Storozynski , 10 AD3d 419 , 781 NYS2d 141 (2nd Dept. 2004); Velazquez v. Equity LLC , 28 AD3d 473 , 814 NYS2d 182 (2nd Dept. 2006) (holding that since there were no triable issues of fact, it was appropriate to search the record and award summary judgment); Resort HRF v. Ocean Garden Nursing Facility , 28 AD3d 450 , 814 NYS2d 179 (2nd Dept. 2006) (finding that plaintiff was entitled to summary judgment because there were no issues of fact).
Upon the movant's establishment of her entitlement to summary judgment, the burden shifts to defendant to establish through admissible evidence that a genuine issue of material fact exists to preclude the granting of summary judgment. See, e.g. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 525 NYS2d 793 (1988); Mimoun v. Barlett, 200 AD2d 721, 607 N.y.S.2d 75 (2d Dept. 1994); First National Bank of Highland v. J J. Milano, Inc., 195 AD2d 539, 600 NYS2d 476 (2d Dept. 1993); City of New York v. Grosfeld Realty Co., 173 AD2d 436, 570 NYS2d 61 (2d Dept. 1991).
Based upon the foregoing, since the plaintiff has clearly established by admissible evidence that she is married to the defendant and the defendant, during their marriage, has been and still is incarcerated in excess of three (3) years, the relief the plaintiff has requested is granted.
Turning next to defendant's request to be declared a "poor person" and be assigned counsel, the defendant did not submit any affidavit to meet the requirements of CPLR 1101(a) which states in relevant part:
S 1101. Motion for permission to proceed as a poor person; affidavit; certificate; notice; waiver of fee; when motion not required.
(a) Motion; affidavit. Upon motion of any person, the court in which an action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person. Where a motion for leave to appeal as a poor person is brought to the court in which an appeal has been or will be taken, such court shall hear such motion on the merits and shall not remand such motion to the trial court for consideration. The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of this action, sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, where every such person is unable to pay such costs, fees and expenses. An executor, administrator or other representative may move for permission on behalf of a deceased, infant or incompetent poor person. (emphasis added)
Therefore, based upon defendant's non-compliance with the foregoing, defendant's request to be declared a "poor person" is denied.
Assuming, arguendo, that this Court did declare defendant a "poor person", CPLR 1102 grants the Court discretion to assign counsel to defendant. CPLR § 1102(a) states, "The court in its order permitting a person to proceed as a poor person may assign an attorney."
However, despite the language contained in CPLR § 1102; it has been consistently found that civil litigants in a matrimonial action have no absolute right to assigned counsel. See Morgenthau v. Garcia, 148 Misc 2d 900, 561 NYS2d 867 (New York Sup. Ct, 1990) (citing Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 (1975)). Moreover, the Court cannot compel assigned counsel to take on representation in the absence of a public funding mechanism to pay his or her fee. Although such a system has been established with respect to child protective proceedings, family offense proceedings, and custody proceeding under the Family Court Act, no similar system for payment has been extended to provide for payment of counsel in matrimonial proceedings.
The action at bar is a civil action for which assignment of uncompensated counsel is neither mandated nor provided. Nevertheless, this defendant has the same options available to other indigent civil litigants. He may attempt to retain private counsel to represent him; he may request legal assistance by communicating with the Bar whose members pro bono publico, may agree to represent him free of charge in this matter; he may also request legal assistance from other voluntary or government funded legal organizations of this state (e.g., the American Civil Liberties Union) that specifically offer their services to indigent litigants.
Therefore, based upon the foregoing, defendant's request for the appointment of counsel is denied. The defendant's remaining contentions are either without merit or not properly before this Court.
Accordingly, plaintiff's motion for summary judgment is granted in its entirety and the relief requested by the defendant is denied in its entirety.
All matters not decided herein are denied.
Settle judgment with Findings of Fact and Conclusions of Law.
This constitutes the decision and order of this Court.