New York State Court of Claims

New York State Court of Claims

HOWE v. THE STATE OF NEW YORK, #2000-015-028, Claim No. 101854, Motion No. M-61227


Synopsis


Absent litigation involving a grievous forfeiture or loss of a fundamental right a claimant will not be assigned an attorney to serve without fee pursuant to CPLR 1102(a).

Case Information

UID:
2000-015-028
Claimant(s):
KENNEDY HOWE
Claimant short name:
HOWE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101854
Motion number(s):
M-61227
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Kennedy Howe, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, Esquire
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 20, 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 alleging that he sustained personal injuries as a result of assaults upon him by correction officers. Claimant also alleges that he has no income or property.

The portion of the poor person application addressed to court costs and fees has been addressed by the order of Presiding Judge Read dated February 15, 2000.

As to the request for the assignment of counsel, 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 (Morgantheau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


April 20, 2000
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Petition for poor person relief dated January 10, 2000;
  2. Affidavit of Kennedy Howe sworn to January 10, 2000;
  3. Affidavit in support of poor person application of Kennedy Howe sworn to January 10, 2000;
  4. Order of Presiding Judge Susan Phillips Read dated February 15, 2000;
  5. Affirmation in opposition of G. Lawrence Dillon dated March 3, 2000;
  6. Claim filed on January 27, 2000.