| Matter of Wiley v Musabyemariya |
| 2014 NY Slip Op 04501 [118 AD3d 898] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Martin Wiley,Petitioner, v Epiphanie Musabyemariya, Respondent. (Proceeding No. 1.) In theMatter of Epiphanie Musabyemariya, Respondent, v Martin Wiley, Appellant.(Proceeding No. 2.) |
Arza R. Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant.
Nancy Tremarzo, Poughkeepsie, N.Y., for respondent.
Michael J. O'Connor, Poughkeepsie, N.Y., attorney for the child.
In two related child custody and visitation proceedings pursuant to Family Court Actarticle 6, the father appeals, as limited by his brief, from so much of an order of theFamily Court, Dutchess County (Watson, J.), dated February 22, 2013, as, after a trial,granted that branch of the mother's petition which was, in effect, to award the father onlysupervised visitation with the subject child, limited to four hours on alternateSaturdays.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The parties are the parents of the subject child, who was born September 14, 2009,and diagnosed, since the commencement of these proceedings, with autism. Both partiespetitioned for custody. Prior to trial on the respective petitions, the father had supervisedvisitation with the child, which was increased on January 30, 2013, to eight hours. OnFebruary 7, 2013, a trial was scheduled to begin after approximately one year ofadjournments. Before the trial commenced, the father's attorney stated that the fatherwished to discharge him. The father requested that the Family Court assign him a newattorney, stating that for "medical reasons," he could not continue to be represented bythis attorney. When the court then noted that the matter was a year old and needed to getresolved "today," the father again stated that he was requesting a new attorney for"medical reasons." As the father refused to say anything more, the court proceeded withthe trial.
Upon the conclusion of the mother's case, in which she was the sole witness, thecourt dismissed the father's petition and granted the mother's petition for sole custody.Further, because of concerns raised by the father's behavior in dismissing his attorneyimmediately before [*2]trial, and then refusing toparticipate in the trial, the court reduced his visitation, reverting to the previous visitationschedule of four hours on alternate weekends.
Contrary to the father's contentions, he was not entitled to a 30-day stay of theproceedings, nor did the Family Court improvidently exercise its discretion in refusing toassign him a new attorney. "As a general rule, CPLR 321 (c) requires that there be a30-day stay of all proceedings after counsel is permitted to withdraw over the client'sobjection . . . Where, however, the attorney's withdrawal is caused by avoluntary act of the client, the court has the discretion to permit the matter to proceedwithout such a stay" (Sarlo-Pinzur v Pinzur, 59 AD3d 607, 608 [2009] [internalquotation marks and citations omitted; emphasis added]). Thus, a party is not entitled to astay pursuant to CPLR 321 (c) "where a party voluntarily discharges his attorney"(Levine v City of New York, 111 AD2d 785, 788 [1985]; see Graco Constr.Corp. v Eves, 232 AD2d 370, 370-371 [1996]; cf. Albert v Albert, 309AD2d 884 [2003]). Here, the father was not entitled to a stay since he voluntarilydischarged his attorney (see Graco Constr. Corp. v Eves, 232 AD2d at370-371).
The father's contentions on appeal that his conduct was not voluntary, but was drivenby a "medical reason," are unsupported. The father's attorney stated that there had beendifferences between him and his client as to how to proceed, and a breakdown incommunication, which support the court's conclusion that there was no valid "medicalreason" for the father's request to discharge his attorney.
Similarly without merit is the father's contention that he was denied his constitutionalright to counsel by the Family Court's refusal to assign him new counsel. Where, as here,an indigent party has a constitutional right to assigned counsel (see Family Ct Act§ 262 [a] [iii]), "this entitlement does not encompass the right to counsel ofone's own choosing" (People vPorto, 16 NY3d 93, 99 [2010]; see People v Sides, 75 NY2d 822, 824[1990]; People v Sawyer, 57 NY2d 12, 18-19 [1982]). "While a court has a dutyto investigate complaints concerning counsel, 'this is far from suggesting that anindigent's request that a court assign new counsel is to be granted casually' "(People v Porto, 16 NY3d at 99, quoting People v Sawyer, 57 NY2d at19). An indigent person may be entitled to new assigned counsel only "upon [a] showing[of] good cause for a substitution" (People v Sides, 75 NY2d at 824 [internalquotation marks omitted]). "Good cause determinations are necessarily case-specific andtherefore fall within the discretion of the trial court" (People v Linares, 2 NY3d 507, 510 [2004]; see People v Smith, 18 NY3d588, 592 [2012]; People v Porto, 16 NY3d at 99-100; People vMedina, 44 NY2d 199, 207 [1978]).
Here, the Family Court properly determined that there was no good cause shown inview of the timing of the father's request, the effect of such timing on the progress of thecase, and the statements of the father's counsel that there had been disagreements overtrial strategy between client and counsel. "[G]ood cause does not exist . . .where, on the eve of trial, disagreements over trial strategy generate discord" (Peoplev Linares, 2 NY3d at 511; see People v Medina, 44 NY2d at 208). Further,based on the father's refusal to provide more than the puzzling statement that he couldnot continue with present counsel "for medical reasons," the Family Court "was notobligated to make [even] 'minimal inquiry' into the [father's] request to substitute newcounsel since his request was based on a conclusory statement and reflected only adelaying tactic" (see People vWoods, 110 AD3d 748 [2013]; People v Stevenson, 36 AD3d 634, 634-635 [2007]).Accordingly, the Family Court did not improvidently exercise its discretion in denyingthe father's request for a substitution of counsel and an adjournment of proceedings onthe day of trial.
The father's contention that certain documents were improperly admitted intoevidence is unpreserved for appellate review. In any event, the Family Court's erroneousadmission of the treating psychologist's affidavit and the child's school records intoevidence was harmless and does not require reversal, because the father was notprejudiced thereby, and these documents played no part in the court's determinationregarding custody or visitation (see Matter of Delehia J. [Tameka J.], 93 AD3d 668, 670[2012]).
The Family Court's determination to temporarily revert to the previous visitationschedule of four hours on alternate Saturdays had a sound and substantial basis in therecord (see [*3]Eschbach v Eschbach, 56 NY2d167, 173 [1982]; Matter ofSingh v Singh, 112 AD3d 949 [2013]; Matter of Mohabir v Singh, 78 AD3d 1056 [2010]; Matter of Wispe v Leandry, 63AD3d 853 [2009]). Eng, P.J., Austin, Hinds-Radix and LaSalle, JJ., concur.