Further Attempts at Obtaining Assigned Counsel

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RENSSELAER
AFFIDAVIT IN SUPPORT

George J Jubic, Plaintiff,
v.
Robert Jubic & Robert McAllister, Index# 214005
Defendants,

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STATE OF NEW YORK
COUNTY OF RENSSELAER;

George J. Jubic, being duly sworn, depose and say:

1. That I am the plaintiff in the above mentioned proceeding.

2. I have commenced this action against the defendants while represented by an

attorney (Mr. James L. Coffin) but he has since been permanently disbarred from

practicing law in the State of New York. Unable to afford the expense of hiring

another attorney, I am left with no choice but to prosecute my case un-assisted by

counsel.

3. Due to financial difficulties, mostly attributed to the wrongs suffered upon

me by the defendants willful and wrongful diversion of my inheritance and

partnership funds, I have found it necessary to file a Chapter 13 bankruptcy in the

United States District Court for the Second Circuit to save my home from

foreclosure. I have been approved by the court to make minimum payments to my

creditors until which time this case can be settled. (See Matter of George J

Jubic, BK Case # 96-12259.

4. My sole source of income is from my full-time employment where I earn $11.00

per hour.

5. The only property I own is the home I am living in, the 2005-6 value of

which is said to be near $100,000, but I owe $70,000 on the mortgage and $10,000

in outstanding debt from mortgage and property tax arrears. These debts are also

included in the bankruptcy re-payment plan, though there is still a chance of losing

my home if my financial situation does not improve. At the time I purchased the home

in 1999, I was counting on my partnership earnings to help make ends meet.

6. It is my hope that my financial status will be significantly improved upon a

favorable settlement of this case, and that all my creditors (including any legal

fees and attorney expenses) can be paid in full and that I will be financially able

to keep my home.

7. On or about April 4th, 2009, I did make a motion in this court pursuant to

CPL 1101 for Permission to Proceed as a Poor Person and also a motion under CPL 1102

for assignment of counsel.

8. On or about June 16, 2009, a Decision & Order was issued denying my

application under CPL 1102 for Assignment of Counsel, but said Decision and Order

did not address my application under CPl 1101 for request for Permission to Proceed

as a Poor Person. (See Decision & Order attached as Ex. ________)

9 CPL § 1101, “ Motion for permission to proceed as a poor person,” is a

separate and distinct application from CPL ss. 1102, “Assignment of Counsel.” CPL

ss. 1101 asks only for a waiver of fees, while application under CPL ss. 1102 asks

for assignment of counsel.

10. Plaintiff submits that the denial of an application under CPL ss. 1102 for

assignment of counsel does not nor should not warrant a blanket denial of an

application under CPl ss. 1101 for a waiver of fees, particularly since permission

to proceed as a poor person is more freely granted than an application for

assignment of counsel in a civil case.

11. Application under CPL 1101 for a waiver of fees should be considered and

decided separately from an application under CPL 1102 for assignment of counsel, as

the statutes intended. Therefore, incorporating the above referenced paragraphs as

well as the previously submitted Motion, Affidavit of Indigence and Memorandum in

Support,

PLAINTIFF RESPECTFULLY REQUEST THE COURT TO DECIDE HIS APPLICATION UNDER CPL 1101 FOR PERMISSION TO PROCEED AS A POOR PERSON FOR WAIVER OF FEES.

12. I make this application for permission to proceed as a poor person pursuant

to Section 1101 of the Civil Practice Law & Rules upon the grounds that I am unable

to pay the costs, fees and expenses necessary to prosecute my case and am unable to

obtain the funds to do so, and unless an order is entered relieving me from the

obligation to pay, I will be unable to prosecute my case.

NATURE OF CASE

13. The case involves a partnership dispute between three (3) individuals,

including myself, a brother and one other.

In 1988, my brother, the defendant Robert Jubic and I inherited property

from our father on the condition that we pay up back taxes and take out a

construction loan and make apartment units out of the old building so we could

enjoy “income for life” from the endeavor which would provide supplemental income

for us in our retirement days. At the time of the signing over of the deed, my

brother, defendant Robert Jubic, did bring to the table with him a close personal

friend of his and partner in other ventures, defendant Robert McAllister. Despite

objections from my father, myself and other family members, defendant Robert Jubic

insisted that defendant Robert McAllisters name be added to the deed as a “full 1/3

partner“ in what was supposed to be a “family venture.” The suit alleges, among

other things, theft, fraud and a wrongful diversion of funds by defendants Robert

Jubic and Robert McAllister. The complaint asks for an accounting and parturition /

forced sale of said property.

14. By way of relief, I am seeking $1,000.000 in damages and punitive fines.

(See Draft copy of Complaint attached as Ex._______)

15. I believe my case against the defendants has merit as does my former

attorney Mr James L. Coffin, as evidenced by the attached letter personally signed

by him attesting to same. (See Ex._____.)

16. I do also personally believe and in good faith allege the merit of my case

because:

a. I can prove that I am 1/3 owner of the partnership and building in question, and as proof of part-ownership of the building and shared liability & contribution regarding same, my name appears on the deed as well as on the loan from the Troy Savings Bank taken out by the partners in furtherance of the venture, as well as the accounting spreadsheet provided to me by the defendants in 2004.

b. By these documents, I can prove that I have contributed equally to said venture in sweat-equity and shared liability for those loans known to me and taken out in furtherance of the venture and repaid in full on my behalf by Defendant Robert Jubic out of partnership funds. (See spreadsheet attached)

c. I can prove that I have never received any profits from said venture, except for a few thousands dollars that was “advanced” to me “as needed” over the years when facing financial difficulties. These loans were to be taken out “as against” my future partnership earnings,..as I was being told at these times by the Defendant/partners right up until the time of the taking of this suit, that the partnership “was not making any profits.“

d. I can prove that said venture is making profits, as by the Defendants own accounts, the venture has grossed nearly $300,000 from the years 1988 to 2004. (See Spreadsheet provided by defendants in 2004 by way of accounting, attached as Ex.______)

PLAINTIFF REQUESTS A RE-CONSIDERATION OF HIS PREVIOUS APPLICATION TO THIS COURT FOR ASSIGNMENT OF COUNSEL

17. Paragraphs 1-13 above incorporated herein by reference.

18. My previous application for assignment of counsel was denied by this court

reasoning that I failed to show “a liberty interest“ that would merit assignment in

a civil case, citing Plank v County of Schenectady, 51 AD3 1283, 3rd Dept. 2008 (See

Decision & Order, pg. 2, para. 2, Ex.______.)

19. The federal courts have described a liberty interest as more than just an

interest in remaining free from confinement. The courts have found that other vital

interests are “liberty interest” protected by the Due Process Clauses, such as those

interests guaranteeing a number of individual freedoms, including the right to

personal autonomy, bodily integrity, self-dignity, and self-determination (Gray v.

Romeo, 697 F. Supp. 580 [1988]). The word liberty, the Supreme Court stated, means

something more than freedom from physical restraint. "It means freedom to go where

one may choose, and to act in such manner … as his judgment may dictate for the

promotion of his happiness … [while pursuing] such callings and avocations as may be

most suitable to develop his capacities, and give to them their highest enjoyment"

(MUNN V. ILLINOIS, 94 U.S. 113, 4 Otto 113, 24 L. Ed. 77 [1876] [Field, J., dissenting]).

20. Plaintiff submits that in order to “act in such a manner as his judgment may

dictate for the promotion of his happiness and well being “ his financial interests

are involved for the purposes of maintaining his “autonomy of self” in that, without

the financial means to keep and maintain his home, or to be free to travel or

vacation, he will be deprived of same, and will therefore be unable to develop his

capabilities for “highest enjoyment“ of same and will therefore be left “unhappy”

and financially destitute.

21. Plaintiff submits that a protected liberty interest exists in maintaining

financial solvency as same is an important and integral part of preservation of

his “self -dignity” and human autonomy.

22. The due process clause of the Fourteenth Amendment to the United States

Constitution and the similar provision contained in our State Constitution prohibit

the government from depriving a person of "life, liberty or property without due

process of law" (Constitution, Amdt XIV; NY Const art 1, § 6). Whether the

constitutional guarantee applies depends on whether the government's actions impair

a protected liberty or property interest.

23. Plaintiff contends that the State's action in denying him assignment of

counsel impairs a protected liberty and property interest in that he will be denied

his right to a full and fair hearing by learned counsel in the matter of the

wrongful taking committed upon him by the defendants concerning his personal

property (real-estate) which directly bears on his present and future financial well-

being. Plaintiffs “liberty interest” is one of maintaining his “autonomy of self”

which can only be achieved in this court by experienced counsel who will represent

his interests in the matter of the wrongful taking of his property as well as to his

present and future financial well-being.

24. Plaintiff further submits that due to his complete lack of knowledge of law

and the legal system, coupled with his mental-health and cognitive issues, he is not

a canidate for self-representation. In support of this argument, Plaintiff herein

submits a letter from his mental-health counselor that verifies and attests to same,

attached herein as (Ex.______)

(c) MOTION FOR RELIEF IN THE MATTER OF DEFENDANTS WILLFUL FAILURE TO COMPLY WITH PLAINTIFFS DISCOVERY REQUESTS

25. Per the Decision and Order of the Court dated June 16, 2009, the court did

Order the Defendants to comply with my discovery request.

26. Pursuant to this Order, the Defendants were Ordered to provide me with the

following requested documents within thirty (30) days of the date of the Order;

(a.) “Copies of all loans, liens, mortgages, etc. taken out or applied against
construction and/or repair costs of the premises alleged in the complaint.”

(b.) “Copies of all repair, inspection, maintenance and/or service records for
the premises alleged in the complaint for the time the partnership existed.”

(c.) “Copies of all current leases and rent receipts regarding the property alleged in the complaint”

(d.) “Copies of all tax records regarding the property in the complaint”

(e.) “Copies of all deeds, loans, and mortgages to all other properties, within and without the State of New York that are jointly owned by the defendants Robert Jubic and Robert McAllister, and tax records for same.”

27. As of the date of the filing of this Motion, defendants have provided me

with no items of discovery. Based on the Defendants willful failure to comply, I

move for summary judgment against them or, in the alternative, to preclude them from

any mention of the items and/or subject matter as listed in my discovery request.

WHEREFORE, I respectfully request that the court issue an ORDER granting me

(1) Permission to proceed in this matter as a poor person and

(2) for assignment of counsel

(3) For an ORDER redressing the defendants failure to comply with my discovery requests, and for any other such further relief the court may deem just and proper.



Dated:_______ ______________________________
George J Jubic, Plaintiff, Pro Se