New York State Court of Claims

New York State Court of Claims

FILES v.THE STATE OF NEW YORK, #2000-015-033, Claim No. 101936, Motion No. M-61377


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:
2000-015-033
Claimant(s):
EDDIE FILES
Claimant short name:
FILES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101936
Motion number(s):
M-61377
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Eddie Files, Pro Se
Defendant's attorney:
No Appearance
Third-party defendant's attorney:

Signature date:
May 11, 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 prosecute the claim without compensation is denied. This is a claim by an inmate appearing pro se seeking to recover for pain and suffering allegedly caused as the result of negligence and medical malpractice on the part of employees of the Department of Correctional Services occurring on June 24, 1999 at Marcy Correctional Facility when claimant was allegedly prescribed a medication which adversely affected his health.

Claimant alleges that he has an income of $5.00 per week and no other income or property. An Assistant Albany County Attorney has submitted a letter dated February 15, 2000 stating that the County is not submitting opposition papers to the motion. The portion of the motion seeking a waiver of the filing fee has already been determined by a prior order of Presiding Judge Read filed on February 29, 2000 and this decision and order addresses only 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 (Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


May 11, 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 January 29, 2000;
  2. Claim filed on February 10, 2000;
  3. Affidavit in support of poor person status of Edie Files sworn to February 8, 2000;
  4. Order of Presiding Judge Read filed on February 29, 2000;
  5. Letter of Assistant Albany County Attorney Amy E. Joyce dated February 15, 2000.