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Matter of DeMarco v. Raftery – Case Brief Summary (New York)

In Matter of DeMarco v. Raftery (242 AD2d 625, 662 NYS2d 138 [2d Dept 1997]), a hearing officer, reviewing an applicant's request for appointment of counsel, noted that the delinquent parent had an interest in real property which a "screening bureau" held was an indication of assets sufficient to deny appointment of counsel.

The applicant had been employed, lost his job and argued that he was indigent. The hearing officer held a hearing (the applicant appeared without counsel) and concluded that the applicant has "not rebutted the presumption of an ability to earn." (Id. at 626.)

The appellate court held that the applicant had been denied the assistance of counsel, stating that the officer's reliance on the real property asset was imprudent, as there was no evidence that it was "susceptible to immediate disposition" and there was no competent proof of its value. (Id. at 626.)

The Court never commented on whether the applicant had some obligation to rebut the "presumption of ability to earn."