Opinion
March 26, 1985
Appeal from the Supreme Court, Bronx County (Wallace R. Cotton, J.).
Appellant's indigency is clearly established on this record, sufficient to conclude that she is a "poor person" (CPLR 1101 [a]). CPLR 1102 (a) authorizes the assignment of counsel where leave has been granted to proceed as a poor person. The courts have "broad discretionary power to assign counsel without compensation in a proper case" ( Matter of Smiley, 36 N.Y.2d 433, 441) and, in the exercise of discretion, counsel has been assigned to represent indigent parties in matrimonial actions ( see, Jacox v. Jacox, 43 A.D.2d 716; Yearwood v. Yearwood, 54 A.D.2d 626; Farrell v. Farrell, 55 A.D.2d 586).
As applied here, despite respondent's claim that there was no showing of indigency, appellant's affidavit stated that she was a recipient of public assistance and that her only source of income was a semimonthly grant from the Department of Social Services of $190.40, as Aid to Families with Dependent Children. She has no assets, savings or real or personal property. It is alleged that the husband, who left the marital abode, has provided no support for appellant or her two children although he is self-employed in his own business. While appellant did receive the assistance of Legal Aid in perfecting the appeal, she was advised that no further assistance could be offered because of Legal Aid's existing caseload and lack of resources. She was also informed by Bronx Legal Services that it did not handle divorce cases.
In our view, the denial of the application was an improvident exercise of discretion. "In the circumstances, counsel should have been assigned in accordance with the Bar's traditional responsibility 'to willingly accept assignments * * * to help those who cannot afford financially to help themselves.' ( Jacox v. Jacox, 43 A.D.2d 716, 717.)" ( Yearwood v. Yearwood, 54 A.D.2d 626, supra.)
Concur — Sandler, J.P., Carro, Bloom and Kassal, JJ.