In re St. Luke's-Roosevelt Hospital Center

261 A.D.2d 320, 691 N.Y.S.2d 414, 1999 N.Y. App. Div. LEXIS 5825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1999
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered March 2, 1998, which substituted respondent Frank Handelman for the deceased respondent nunc pro tunc as of the date of her death, December 27,1995, and awarded prevailing party counsel fees pursuant to 42 USC § 1988, unanimously affirmed, without costs.

The IAS Court’s substitution of Frank Handelman, the deceased respondent’s assigned counsel in her Mental Hygiene Law article 81 proceeding, was a provident exercise of discretion pursuant to CPLR 1015 (a) in light of the identity of interest between the decedent and Handelman (see, Rocha Troussier y Asociados v Rivero, 184 AD2d 398).

The award of counsel fees pursuant to 42 USC § 1988 was also appropriate because the issues raised in the article 81 proceeding, as to whether the decedent was entitled to assigned counsel and whether the City of New York should pay for said counsel, involved the litigation of constitutional questions, and although the matter was ultimately resolved on State statutory grounds (Matter of St. Luke’s-Roosevelt Hosp. Ctr., 89 NY2d 889), “attorney’s fees are available under section 1988 where relief is sought on both State and Federal grounds, but nevertheless awarded on State grounds only” (Matter of Thomasel v Perales, 78 NY2d 561, 568).

We have considered appellant’s other contentions and find them unpersuasive. Concur — Sullivan, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.