IN RE: TODD M. SMITH (2011)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b][1] ) to annul an administrative review of fee award.

It is hereby ORDERED that the petition is unanimously granted in part and the determination is annulled on the law without costs.

Memorandum:  Petitioner commenced this original CPLR article 78 proceeding seeking, inter alia, to annul the administrative determination of respondent District Administrative Judge (hereafter, Administrative Judge) that Onondaga County Court (hereafter, County Court), which presided over the criminal proceeding in question, had no authority to appoint petitioner as assigned counsel in the criminal proceeding or to award legal fees to petitioner.   We agree with petitioner that the Administrative Judge exceeded his authority pursuant to 22 NYCRR 127.2(b) and thus grant that part of the petition seeking to annul the administrative determination (see CPLR 7803[2];  7806).

Petitioner thereafter moved in County Court for an order pursuant to County Law § 722–b and 22 NYCRR 1022.12 granting fees in excess of the statutory limits for assigned counsel.   Respondent County of Onondaga (hereafter, County) and ACP opposed the motion, contending that petitioner was ineligible for appointment as assigned counsel, and that County Court was obligated to assign counsel pursuant to the plan adopted by the County and set forth in ACP's handbook.   County Court granted petitioner's motion and ordered that ACP compensate petitioner for his services rendered from the time petitioner was first included on an ACP panel list through the conclusion of the criminal proceeding.

The County and ACP requested that the Administrative Judge review County Court's order pursuant to 22 NYCRR 127.2(b).  The Administrative Judge thereupon rendered an administrative determination granting the application of the County and ACP, determining that petitioner “never timely applied to be appointed for ACP nor was he qualified to be appointed by ACP as a second-seated counsel.”   Noting that it was not within County Court's “purview to appoint a person that is not on the ACP panel in accordance with § 722–b of County Law,” the Administrative Judge concluded that “there was no authority to award any fees” to petitioner.   He further concluded that “any legal fee award” to petitioner would have been “excessive.”   In reaching his determination, the Administrative Judge rejected the contention of petitioner that administrative review should be limited to “review of payments for extraordinary circumstances only,” concluding instead that he was vested with the authority to review compensation pursuant to 22 NYCRR 127.2.   That was error.

As an initial matter, we reject the contention of the County and ACP that this Court lacks the power to review the administrative determination.  “[A]lthough our authority to review the merits of orders awarding compensation to assigned counsel is extremely curtailed ․, we do have the authority to review challenges related to the court's power to assign and compensate counsel pursuant to a plan or statute” (Goehler v. Cortland County, 70 AD3d 57, 61;  see Matter of Harvey v. County of Rensselaer, 83 N.Y.2d 917, 918;  Matter of Parry v. County of Onondaga, 51 AD3d 1385, 1387;  Matter of Legal Aid Socy. of Orange County v Patsalos, 185 A.D.2d 926).   Here, the Administrative Judge set aside the compensation award on the ground that County Court had no authority under the ACP plan or County Law § 722–b to assign petitioner or to award him fees.   Thus, the determination directly implicated County Court's power to assign and compensate counsel pursuant to a plan or statute, bringing the review of the determination within our purview (see generally Matter of Director of Assigned Counsel Plan of City of N.Y.[Bodek], 87 N.Y.2d 191;  Goehler, 70 AD3d at 61).   Stated differently, because the determination of the Administrative Judge was a judicial or quasi-judicial action, as opposed to a strictly administrative action, prohibition lies (see Siegel, N.Y. Prac § 559 [4th ed] ).

On the merits, we agree with petitioner that the Administrative Judge exceeded his authority pursuant to 22 NYCRR 127.2(b).  That rule provides that the appropriate administrative judge may review an order of a trial judge “with respect to a claim for compensation in excess of the statutory limits ․ [and] may modify the award if it is found that the award reflects an abuse of discretion by the trial judge” (emphasis added).   Thus, under the plain language of the rule, an administrative judge's authority is limited to modifying an excess compensation award if the amount awarded is determined to be an abuse of discretion.   Here, the Administrative Judge determined that the court had “no authority to award any fees to an attorney who is not appointed by the [c]ourt prior to rendering the services, and who was not qualified by the accepted rules to handle a case such as this.”   That determination is outside the purview of 22 NYCRR 127.2(b).  We therefore grant that part of the petition seeking to annul the administrative determination (see CPLR 7803[2] ).

Petitioner's second request for relief, i.e., a judgment “determining that the [p]etitioner be paid for his services ․ in accordance with” County Court's March order, is rendered unnecessary by our annulment of the administrative determination.   Although the County and ACP contend that County Court's appointment of petitioner as assigned counsel was unauthorized inasmuch as petitioner was not “qualified” under ACP rules and therefore was not “assigned in accordance with a plan of a bar association conforming to the requirements of [County Law § 722]” (County Law § 722–b [1] [emphasis added] ), the validity of that contention is not an issue that is properly before us in this proceeding.   Rather, the County and/or ACP should have commenced a CPLR article 78 proceeding seeking a writ of prohibition on the ground that County Court was acting in the absence or in excess of its jurisdiction pursuant to County Law § 722 (see generally Matter of McNamara v Tormey, 42 AD3d 971, 972), or should have sought leave to appeal from County Court's order (see CPLR 5701[c] ).  The County and/or ACP failed to do so, and the time within which to seek leave to appeal or to commence a CPLR article 78 proceeding has expired (see CPLR 217[1];  5513[b] ).  We therefore conclude that the County and ACP are bound by County Court's order, and that relief in the form of mandamus is unnecessary.

Patricia L. Morgan

Clerk of the Court