New York State Court of Claims

New York State Court of Claims

NEISH v. THE STATE OF NEW YORK, #2000-015-017, Claim No. 101590, Motion No. M-61123


Synopsis


An attorney should not be appointed to represent an indigent inmate without fee pursuant to CPLR § 1102(a) absent litigation involving a grievous forfeiture or loss of a fundamental right.

Case Information

UID:
2000-015-017
Claimant(s):
RUPERT NEISH
Claimant short name:
NEISH
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101590
Motion number(s):
M-61123
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Rupert Neish, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: No Appearance
Third-party defendant's attorney:

Signature date:
March 28, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The motion of the claimant for an order pursuant to CPLR § 1102 (a) assigning him an attorney to represent him without fee is denied. This is a claim by an inmate appearing pro se to recover the value of a typewriter allegedly damaged in the course of transit by employees of the Department of Correctional Services. The portion of the motion addressed to the waiver of all fees has been determined by the prior order of Judge McNamara filed on January 21, 2000. With respect to the application for the assignment of an attorney, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


March 28, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Notice of motion dated December 7, 1999;
  2. Affidavit in support of poor person status sworn to December 7, 1999;
  3. Claim filed on December 13, 1999.