New York State Court of Claims

New York State Court of Claims

AYERS v. THE STATE OF NEW YORK, #2000-015-045, Claim No. 102097, Motion No. M-61534


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:
2000-015-045
Claimant(s):
KEVIN AYERS
Claimant short name:
AYERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102097
Motion number(s):
M-61534
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Kevin Ayers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 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 prosecute his claim without compensation is denied. This is a claim by an inmate appearing pro se seeking to recover the value of items of personal property allegedly lost through the negligence of employees of the Department of Correctional Services while the claimant was in the course of being transferred to the Downstate Correctional Facility from Mid-State Correctional Facility via Greene Correctional Facility on October 6, 1999.

Claimant alleges that he has no income or property. The portion of the motion seeking a waiver of the filing fee has already been determined by a prior order of Presiding Judge Read and this decision and order addresses only the request for the assignment of counsel.

The Court has received a letter from Assistant Attorney General Joel L. Marmelstein stating that the Attorney General has never been served with the claim.

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.


June 28, 2000
Saratoga Springs, New York

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


The Court considered the following papers:
  1. Petition in support of poor person status dated March 6, 2000;
  2. Affidavit in support of poor person status of Kevin Ayers sworn to March 6, 2000;
  3. Order of Presiding Judge Susan Phillips Read dated March 24, 2000;
  4. Claim filed on March 3, 2000;
  5. Letter of Assistant Attorney General Joel L. Marmelstein dated May 3, 2000.