New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2000-015-058, Claim No. 101688, Motion Nos. M-61684, M-61794


Absent grievous forfeiture or loss of a fundamental right a lawyer will not be assigned pursuant to CPLR 1102.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61684, M-61794
Cross-motion number(s):

Claimant's attorney:
Michael Myers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motions of claimant for orders pursuant to CPLR § 1102(a) assigning him an attorney to prosecute his claim without compensation are denied. This is a claim by an inmate appearing pro se to recover for personal injuries allegedly sustained by him at approximately 3:55 p.m. on December 15, 1999 as the result of an assault upon him by correction officers outside of the shower room of the special housing unit at Mid-State Correctional Facility. In addition, claimant is seeking to recover the value of a calculator, tapes and photos allegedly lost through the negligence of defendant's employees.

By two separate motions, claimant seeks the assignment of counsel upon the ground that his mental health problems may hinder him in the preparation and trial of his claim.

The motion must be denied for a number of reasons. First, there is no indication that the motion papers were served upon the appropriate county attorney as required by CPLR § 1101 (c). Secondly, the claimant has not filed an affidavit setting forth the amount and sources of his income and listing his property with its value as required by CPLR § 1101 (a). As a consequence, the Court is unable to determine whether the claimant is financially able to retain his own attorney. Most importantly, 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. Finally, claimant's allegation that his mental condition will inhibit his ability to pursue this claim is unsupported by any medical records.

August 2, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion filed on May 30, 2000;
  2. Affidavit of Michael L. Myers sworn to May 25, 2000;
  3. Unsworn statement of Michael Myers dated April 30, 2000;
  4. Claim filed on December 28, 1999;
  5. Affirmation in opposition of G. Lawrence Dillon dated June 2, 2000.