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Kimberly Hurrell-Harring et al., On Behalf of Themselves and All v. State of New York et al

January 6, 2011

KIMBERLY HURRELL-HARRING ET AL., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
STATE OF NEW YORK ET AL., RESPONDENTS.



Appeal from an order of the Supreme Court (Devine, J.), entered July 13, 2009 in Albany County, which denied plaintiffs' motion for class action certification.

The opinion of the court was delivered by: Peters, J.P.

OPINION AND ORDER

Calendar Date: November 16, 2010

Before: Peters, J.P., Rose, Malone Jr. and Garry, JJ.

Plaintiffs, who at the time had criminal charges pending against them in defendants Onondaga, Ontario, Schuyler, Suffolk and Washington Counties (hereinafter collectively referred to as the counties), commenced this putative class action alleging that the current system of public defense is systemically deficient and poses a grave risk that indigent criminal defendants are being or will be denied their constitutional right to counsel. They sought, among other things, a declaration that their constitutional rights and those of the class are being violated and an injunction requiring defendants to provide a system of public defense consistent with those guarantees. On a prior appeal, this Court found, by a plurality, that the complaint alleged only non-justiciable claims of ineffective assistance of counsel and granted defendant State of New York's motion to dismiss (66 AD3d 84 [2009]). The Court of Appeals subsequently modified this Court's order and reinstated a portion of the complaint, concluding that plaintiffs stated a claim for both actual and "constructive" denial of the right to counsel under Gideon v Wainwright (372 US 335 [1963]) and that such systemic claims are justiciable in a collateral civil action seeking prospective relief (15 NY3d 8, 22-23 [2010]).

In the meantime, plaintiffs moved for class action certification, seeking certification of a class of

"[a]ll indigent persons who have or will have criminal felony, misdemeanor, or lesser charges pending against them in New York state courts in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who are entitled to rely on the government of New York to provide them with meaningful and effective defense counsel."

Supreme Court denied the motion, finding that plaintiffs had failed to demonstrate that they would fairly and adequately protect the interests of the entire class and that a class action was superior to other available methods for resolving the claims. Plaintiffs appeal and we reverse.

In order to obtain class action certification, a party must establish that:

"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy" (CPLR 901 [a]).

Significantly, these criteria must be liberally construed and "any error, if there is to be one, should be . . . in favor of allowing the class action" (Pruitt v Rockefeller Ctr. Props., 167 AD2d 14, 21 [1991] [internal quotation marks and citation omitted]; accord Lauer v New York Tel. Co., 231 AD2d 126, 130 [1997]; see Liechtung v Tower Air, 269 AD2d 363, 364 [2000]; Friar v Vanguard Holding Corp., 78 AD2d 83, 91 [1980]). Furthermore, while the determination as to whether a lawsuit qualifies as a class action rests within the sound discretion of the trial court, we are vested with a corresponding power to substitute our own discretion for that of the trial court, even in the absence of an abuse of that discretion (see City of New York v Maul, 14 NY3d 499, 509 [2010]; Small v Lorillard Tobacco Co., 94 NY2d 43, 52-53 [1999]).

Following these principles, and guided by the Court of Appeals' articulation of plaintiffs' claim subsequent to Supreme Court's determination, we find that plaintiffs satisfied all of the prerequisites to class action certification. There can be no serious dispute that the proposed class, consisting of potentially tens of thousands of individuals, meets the numerosity requirement (see CPLR 901 [a] [1]). Furthermore, common questions of law and fact predominate over questions affecting only individual class members (see CPLR 901 [a] [2]). Significantly, the Court of Appeals dismissed the complaint to the extent that it was premised on performance based claims of ineffective assistance of counsel, thereby obviating any need to conduct individualized inquiries into the performance of the class members' individual attorneys. With only the claims of "outright" and "constructive denial" of the right to counsel at a critical stage of the criminal proceeding remaining (15 NY3d at 22-23), the "basic, unadorned question presented [in this action] is whether the State has met its obligation to provide counsel" (id. at 23). That is, the inquiry distills to whether, "in one or more of the five counties at issue[,] the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being unmet because of systemic conditions" (id. at 25). It is this concrete legal issue, and the constitutional right to counsel sought to be vindicated, that is common to all members of the class and transcends any individual questions. That the class members may have suffered the deprivation of their constitutional right to counsel in varying manners -- be it through outright denial of counsel during arraignment or a bail hearing, or nonrepresentation at a critical stage - does not compel a conclusion that individual issues predominate; "it is 'predominance, not identity or unanimity,' that is the linchpin of commonality" (City of New York v Maul, 14 NY3d at 514, quoting Friar v Vanguard Holding Corp., 78 AD2d at 98; see Fleming v Barnwell Nursing Home & Health Facilities, 309 AD2d 1132, 1133-1134 [2003]). Likewise, "the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action" (City of New York v Maul, 14 NY3d at 514 [internal quotation marks and citation omitted]). Additionally, inasmuch as the named plaintiffs' claims derive from the same course of conduct that gives rise to the claims of the other class members and is based upon the same legal theory (see Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d 604, 607 [1987]; Friar v Vanguard Holding Corp., 78 AD2d at 99), the prerequisite of typicality is also satisfied (see CPLR 901 [a] [3]).

Moreover, plaintiffs have demonstrated that the representative parties would fairly and adequately protect the interests of the entire class (see CPLR 901 [a] [4]). Plaintiffs submitted evidence that class counsel is highly experienced in class action litigation and has sufficient resources available to adequately protect and represent the class (see City of New York v Maul, 59 AD3d 187, 190 [2009], affd 14 NY3d 499 [2010]; Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129, 144 [2008]). Furthermore, affidavits from the named plaintiffs established that they are familiar with the litigation and understand the issues involved, and several of the representative plaintiffs also indicated that they joined in the lawsuit not in an effort to alter the outcomes of their individual cases, but in order to improve the indigent defense system. The fact that the criminal cases of the named plaintiffs have terminated does not, in our view, suggest that they will not adequately pursue the action (cf. United States Parole Commn. v Geraghty, 445 US 388, 397-400 [1980]).

Nor do we perceive a potential conflict of interest between plaintiffs and members of the proposed class. In finding otherwise, Supreme Court reasoned that plaintiffs' failure to pursue a damages claim in this action would bar class members, under principles of res judicata, from subsequently bringing individual legal malpractice claims against their criminal attorneys. However, "a class action judgment 'will as a rule bind only as to matters actually litigated and not necessarily those ...


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