New York State Court of Claims

New York State Court of Claims

VEGA v. THE STATE OF NEW YORK, #2002-015-227, Claim No. 105039, Motion No. M-64400


Claimant's request for assignment of counsel in medical malpractice/negligence claim denied on basis of Smiley, Matter of, 36 NY2d 433.

Case Information

CARLOS VEGA The Court hereby amends the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court hereby amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Carlos Vega, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 12, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's application seeking the appointment of counsel is denied. The claim filed October 11, 2001 seeks to recover damages for personal injuries arising from the alleged medical malpractice, medical negligence and deliberate medical indifference of DOCS employees for the period from May 16, 1998 to August 8, 2001. Claimant seeks $100,500.00 in compensatory damages and $50,000.00 in punitive damages.

Claimant's application for a reduction of the filing fee imposed by Court of Claims Act § 11-a was granted by order of Presiding Judge Susan Phillips Read dated October 23, 2001. The claimant by this motion now seeks to obtain an attorney to represent him with regard to this claim.

The State opposed the motion through the affirmation of Assistant Attorney General Joel L. Marmelstein dated December 20, 2001 on the ground that neither the claim nor the motion was served upon the defendant. Attached to defense counsel's affirmation is the affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General, who avers that although a notice of intention to file a claim was properly served upon the Attorney General on August 28, 2001 by certified mail, return receipt requested, no claim has been served upon the office nor has the Attorney General received a copy of the instant motion papers.

Claimant's request for the assignment of an attorney must be denied. 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 (Smiley, Matter of, 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 (Willis v City of Troy, 258 AD2d 849, lv to app dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.

March 12, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Affidavit of Carlos Vega sworn to November 26, 2001;
  1. Affirmation of Joel L. Marmelstein dated December 20, 2001;
  2. Affidavit of Carol A. McKay sworn to December 18, 2001, with exhibits;