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AB78 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           78
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 4, 2023
                                       ___________
 
        Introduced  by  M.  of  A. L. ROSENTHAL -- read once and referred to the
          Committee on Judiciary
 
        AN ACT to amend the county law, in relation to the  provision  of  legal
          representation  to certain persons in eviction, ejectment and foreclo-
          sure proceedings

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The county law is amended by adding a new article 18-C to
     2  read as follows:
 
     3                                ARTICLE 18-C
     4      REPRESENTATION OF PERSONS IN EVICTION, EJECTMENT AND FORECLOSURE
     5                                 PROCEEDINGS
     6  Section 723. Definitions.
     7          723-a. Plan for representation.
     8          723-b. Compensation and reimbursement for representation.
     9          723-c. Services other than counsel.
    10          723-d. Duration of assignment.
    11          723-e. Expenses.
    12          723-f. Annual reports.
    13    § 723. Definitions. For purposes of this article the  following  terms
    14  shall have the following meanings:
    15    1.  "Covered  proceeding"  means  any  action or special proceeding to
    16  evict an eligible individual, including those seeking possession for the
    17  non-payment of rent or holdover, or proceedings for ejectment  or  fore-
    18  closure.
    19    2.  "Eligible  person" means an occupant of a rental dwelling unit, an
    20  owner of shares of a cooperative corporation who occupies  the  dwelling
    21  unit  to  which  such  shares are allocated, the owner and occupant of a
    22  dwelling unit owned as a condominium or the owner and occupant of a one-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00015-01-3

        A. 78                               2
 
     1  or two-family dwelling who is a defendant or  respondent  in  a  covered
     2  proceeding  and  whose  gross  individual income is not in excess of one
     3  hundred twenty-five percent of the federal income official poverty line.
     4    3. "Counsel" means a lawyer or lawyers licensed to practice law in New
     5  York state.
     6    §  723-a.  Plan  for representation. The governing body of each county
     7  and the governing body of the city in which a county is wholly contained
     8  shall place in operation throughout the  county  a  plan  for  providing
     9  legal counsel to eligible persons who are defendants or respondents in a
    10  covered  proceeding  and  who  are financially unable to obtain counsel.
    11  Each plan  shall  also  provide  for  investigative,  expert  and  other
    12  services  necessary, where appropriate. The plan shall conform to one of
    13  the following:
    14    1. Representation by a public defender appointed pursuant to  subdivi-
    15  sion three of section seven hundred seventeen of this chapter.
    16    2.  (a) Representation by counsel furnished pursuant to either or both
    17  of the following: a plan of a bar association in each county or the city
    18  in which a county is wholly  contained  whereby:  (i)  the  services  of
    19  private  counsel  are  rotated  and coordinated by an administrator, and
    20  such administrator may be compensated for such  service;  or  (ii)  such
    21  representation is provided by an office of conflict defender.
    22    (b)  Any  plan  of  a bar association must receive the approval of the
    23  state administrator before the plan is placed in operation. When consid-
    24  ering approval of an  office  of  conflict  defender  pursuant  to  this
    25  section, the state administrator shall employ the guidelines established
    26  by  the  office  of indigent legal services pursuant to paragraph (d) of
    27  subdivision three of section eight hundred thirty-two of  the  executive
    28  law.
    29    (c)  Any county operating an office of conflict defender, as described
    30  in subparagraph (ii) of paragraph (a) of this subdivision, as  of  March
    31  thirty-first,  two  thousand  ten  may  continue to utilize the services
    32  provided by such office provided that the county submits a plan  to  the
    33  state  administrator  within one hundred eighty days after the promulga-
    34  tion of criteria for the provision of conflict defender services by  the
    35  office  of  indigent  legal  services.  The authority to operate such an
    36  office pursuant to this paragraph shall expire when the  state  adminis-
    37  trator  approves  or disapproves such plan. Upon approval, the county is
    38  authorized to operate such office in accordance with paragraphs (a)  and
    39  (b) of this subdivision.
    40    3. When a county or city in which a county is wholly contained has not
    41  placed  in  operation  any  plan  conforming  to that prescribed in this
    42  section, a judge, justice or magistrate may assign any attorney in  such
    43  county  or  city and, in such event, such attorney shall receive compen-
    44  sation and reimbursement from such county or city which shall be at  the
    45  same  rate  as  is prescribed in section seven hundred twenty-three-b of
    46  this article.
    47    4. Representation according to a plan containing a combination of  any
    48  of the foregoing.
    49    §  723-b.  Compensation  and reimbursement for representation. 1.  All
    50  counsel assigned in accordance with a plan of a bar association conform-
    51  ing to the requirements of section seven hundred twenty-three-a of  this
    52  article  whereby the services of private counsel are rotated and coordi-
    53  nated by an administrator shall at the conclusion of the  representation
    54  receive:
    55    (a) for representation of a person entitled to representation pursuant
    56  to this article for an eviction or ejectment proceeding, compensation at

        A. 78                               3
 
     1  a  rate of sixty dollars per hour for time expended in court or before a
     2  magistrate, judge or justice,  and  sixty  dollars  per  hour  for  time
     3  reasonably  expended  out  of court, and shall receive reimbursement for
     4  expenses reasonably incurred; and
     5    (b) for representation of a person entitled to representation pursuant
     6  to  this article for a foreclosure proceeding, compensation at a rate of
     7  seventy-five dollars per hour for time expended in court before a magis-
     8  trate, judge or justice and  seventy-five  dollars  per  hour  for  time
     9  reasonably  expended  out  of court, and shall receive reimbursement for
    10  expenses reasonably incurred.
    11    2. Except as otherwise provided in this section, compensation for time
    12  expended in providing representation:
    13    (a) pursuant to paragraph (a) of subdivision one of this section shall
    14  not exceed an amount established by the state administrator; and
    15    (b) pursuant to paragraph (b) of subdivision one of this section shall
    16  not exceed four thousand four hundred dollars.
    17    3. For representation on an  appeal,  compensation  and  reimbursement
    18  shall  be  fixed  by  the appellate court. For all other representation,
    19  compensation and reimbursement shall be fixed by the trial court  judge.
    20  In  extraordinary  circumstances  a trial or appellate court may provide
    21  for compensation in excess of the foregoing limits and  for  payment  of
    22  compensation and reimbursement for expenses before the completion of the
    23  representation.
    24    4. Each claim for compensation and reimbursement shall be supported by
    25  a  sworn  statement  specifying  the  time  expended, services rendered,
    26  expenses incurred and  reimbursement  or  compensation  applied  for  or
    27  received  in  the  same  case from any other source. No counsel assigned
    28  hereunder shall seek or accept any fee for representing  the  party  for
    29  whom he or she is assigned without approval of the court as provided.
    30    § 723-c. Services other than counsel. 1. Upon a finding in an ex parte
    31  proceeding  that  investigative,  expert or other services are necessary
    32  and that the eligible individual, is financially unable to obtain  them,
    33  the court shall authorize counsel, whether or not assigned in accordance
    34  with  a  plan,  to  obtain  the  services  on behalf of the defendant or
    35  respondent. The court upon a finding that timely procurement  of  neces-
    36  sary  services  could  not  await  prior authorization may authorize the
    37  services nunc pro tunc. The court  shall  determine  reasonable  compen-
    38  sation  for  the  services and direct payment to the person who rendered
    39  them or to the person entitled to reimbursement. Only  in  extraordinary
    40  circumstances  may  the  court provide for compensation in excess of one
    41  thousand dollars per investigative, expert or other service provider.
    42    2. Each claim for compensation shall be supported by a sworn statement
    43  specifying the time expended, services rendered, expenses  incurred  and
    44  reimbursement  or  compensation applied for or received in the same case
    45  from any other source.
    46    § 723-d. Duration of assignment. Whenever it appears that the  defend-
    47  ant  or  respondent  is  financially  able  to obtain counsel or to make
    48  partial payment for the representation or other  services,  counsel  may
    49  report this fact to the court and the court may terminate the assignment
    50  of  counsel  or  authorize  payment,  as  the  interests  of justice may
    51  dictate, to the public defender, private legal aid  bureau  or  society,
    52  private attorney, or otherwise.
    53    §  723-e.  Expenses.  All  expenses for providing counsel and services
    54  under this article appropriated by a county or a city in which a  county
    55  is wholly contained shall be matched dollar for dollar by the state.

        A. 78                               4
 
     1    §  723-f.  Annual  reports. 1. A public defender appointed pursuant to
     2  article eighteen-A of this chapter, a private legal aid bureau or socie-
     3  ty designated by a county or city pursuant to subdivision two of section
     4  seven hundred twenty-three-a of this article, and an administrator of  a
     5  plan  of  a  bar  association  appointed  pursuant to subdivision two of
     6  section seven hundred twenty-three-a of this article shall file an annu-
     7  al report with the judicial conference at such times and in such  detail
     8  and form as the judicial conference may direct.
     9    2.  (a) The county executive or chief executive officer of each county
    10  or, in the case of a county wholly contained within a  city,  such  city
    11  shall  file  an annual report which specifies in detail and certifies to
    12  the state comptroller the total expenditures of  such  county  or  city,
    13  identifying  "local  funds",  as  defined  in subdivision two of section
    14  ninety-eight-b of the state finance law, state funds, federal funds  and
    15  funds  received  from a "private source" as described in subdivision two
    16  of section ninety-eight-b of the state finance law, for providing  legal
    17  representation to persons who were financially unable to afford counsel,
    18  pursuant  to  this article.   Such annual report shall be made on a form
    19  developed for such purpose by the state comptroller.
    20    (b) Such annual report, detailing expenditures for the period  January
    21  first through December thirty-first of the previous calendar year, shall
    22  be  filed  on  or  before the first day of March of each year, provided,
    23  however, that the  first  report  required  by  this  subdivision  shall
    24  contain the required information, separately stated, for the two preced-
    25  ing calendar years.
    26    § 2. Section 717 of the county law is amended by adding a new subdivi-
    27  sion 3 to read as follows:
    28    3.  The  public  defender  shall  also represent, without charge, in a
    29  proceeding in court in the county or counties where such public defender
    30  serves, any person entitled to counsel pursuant to article eighteen-C of
    31  this chapter, who is financially unable to obtain counsel. When  repres-
    32  enting  such person, the public defender shall counsel and represent him
    33  at every stage of the proceedings, shall initiate such proceedings as in
    34  the judgment of the public defender are necessary to protect the  rights
    35  of  such  person, and may prosecute any appeal when, in his judgment the
    36  facts and circumstances warrant such appeal.
    37    § 3. Severability. If any clause, sentence, paragraph, section or part
    38  of this act shall be adjudged by any court of competent jurisdiction  to
    39  be  invalid  and  after  exhaustion  of all further judicial review, the
    40  judgment shall not affect, impair or invalidate the  remainder  thereof,
    41  but  shall  be  confined in its operation to the clause, sentence, para-
    42  graph, section or part of this act directly involved in the  controversy
    43  in which the judgment shall have been rendered.
    44    § 4. This act shall take effect on the one hundred eightieth day after
    45  it shall have become a law.  Effective immediately, the addition, amend-
    46  ment and/or repeal of any rule or regulation necessary for the implemen-
    47  tation  of  this act on its effective date are authorized to be made and
    48  completed on or before such effective date.
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