        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1281
CA 11-00276
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


CHRISTINA G. CAGNINA, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ONONDAGA COUNTY, THE ASSIGNED COUNSEL
PROGRAM, INC., ONONDAGA COUNTY BAR
ASSOCIATION, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


JEFFREY R. PARRY, SYRACUSE, FOR PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JONATHAN B. FELLOWS OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered September 28, 2010. The order granted
the motion of defendants Onondaga County, The Assigned Counsel
Program, Inc., and the Onondaga County Bar Association for partial
summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by denying that part of defendants’ motion for partial
summary judgment dismissing the declaratory judgment cause of action,
vacating the third ordering paragraph, reinstating that cause of
action and granting judgment in favor of defendants as follows:

          It is ADJUDGED and DECLARED that the assigned counsel
     plan established by defendant Onondaga County Bar
     Association Assigned Counsel Program, Inc., incorrectly sued
     as The Assigned Counsel Program, Inc., is valid with the
     exception of section D (2) under the “Assignment by Court
     and Client Eligibility” heading,

and by granting judgment in favor of plaintiff as follows:

          It is ADJUDGED and DECLARED that section D (2) under
     the “Assignment by Court and Client Eligibility” heading of
     the assigned counsel plan is invalid,

and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that various sections of the assigned counsel plan in
defendant Onondaga County (County) were invalid. Defendant Onondaga
                                  -2-                          1281
                                                          CA 11-00276

County Bar Association Assigned Counsel Program, Inc., incorrectly
sued as The Assigned Counsel Program, Inc. (ACP), established the
assigned counsel plan (hereafter, ACP Plan) pursuant to County Law
article 18-B through a contract with defendant Onondaga County Bar
Association (OCBA). Defendants moved for partial summary judgment
dismissing the complaint against OCBA and three causes of action,
including one seeking a declaratory judgment, against the remaining
defendants.

     For the reasons set forth in Roulan v County of Onondaga (___
AD3d ___ [Dec. 30, 2011]), we conclude that Supreme Court erred in
granting the motion in its entirety. As we concluded in Roulan,
section D (2) under the “Assignment by Court and Client Eligibility”
heading of the ACP Plan should be declared invalid. Although
plaintiff did not cross-move for summary judgment on the declaratory
judgment cause of action, CPLR 3212 (b) permits us to search the
record and to grant summary judgment to a nonmoving party where, as
here, it appears that a nonmoving party is entitled to such relief.
We therefore modify the order by denying that part of defendants’
motion for partial summary judgment dismissing the declaratory
judgment cause of action, vacating the third ordering paragraph,
reinstating that cause of action and declaring that the ACP Plan is
valid with the exception of section D (2) under the “Assignment by
Court and Client Eligibility” heading. We further modify the order by
granting judgment in favor of plaintiff and declaring that section D
(2) under the “Assignment by Court and Client Eligibility” heading of
the ACP Plan is invalid.

     All concur except GREEN and MARTOCHE, JJ., who dissent in part and
vote to modify in accordance with the following Memorandum: We
respectfully dissent in part. We agree with the majority except
insofar as the majority concludes that section C (4) under the
“Assignment by Court and Client Eligibility” heading of the assigned
counsel plan established by defendant Onondaga County Bar Association
Assigned Counsel Program, Inc., incorrectly sued as The Assigned
Counsel Program, Inc. (hereafter, ACP Plan), is valid (see Roulan v
County of Onondaga, ___ AD3d ___ [Dec. 30, 2011, Green, J. and
Martoche, J., dissenting]). We therefore would further modify the
order by declaring that section C (4) under the “Assignment by Court
and Client Eligibility” heading of the ACP Plan is invalid.




Entered:   December 30, 2011                     Frances E. Cafarell
                                                 Clerk of the Court
