New York State Court of Claims

New York State Court of Claims

FAGBEWEST v. THE STATE OF NEW YORK, #2002-019-571, Claim No. 104241, Motion Nos. M-65639, M-65840


Synopsis


Claimant's motions for assignment of counsel is denied.

Case Information

UID:
2002-019-571
Claimant(s):
RANDOLPH FAGBEWEST
Claimant short name:
FAGBEWEST
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104241
Motion number(s):
M-65639, M-65840
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
RANDOLPH FAGBEWEST, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
October 10, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, has made two motions seeking identical relief, namely an order assigning counsel to assist him in litigating this matter and poor person status pursuant to CPLR 1101. The State of New York (hereinafter "State") opposes Motion No. M-65840 and represents that it has not been served with Motion No. M-65639, but nevertheless indicates its opposition thereto.


The Court has considered the following papers in connection with these motions:
  1. Claim, filed May 7, 2001.
  2. "MOTION FOR THE APPOINTMENT OF COUNSEL", Motion No. M-65639, dated July 12, 2002, and filed August 9, 2002.
  3. Affidavit of Randolph Fagbewest, in support of Motion No. M-65639, sworn to August 2, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-65639, dated September 6, 2002, and filed September 9, 2002, with attached exhibit.
  5. Notice of Motion No. M-65840, dated September 11, 2002, and filed September 16, 2002.
  6. Affidavit of Randolph Fagbewest, in support of Motion No. M-65840, sworn to September 11, 2002.
  7. Affirmation of James E. Shoemaker, AAG, in opposition to Motion No. M-65840, dated October 2, 2002, and filed October 4, 2002.
This Claim alleges that Southport Correctional Facility personnel were negligent in providing Claimant a wooden stool placed upon an icy area in order for him to enter a transport van on February 21, 2001. Claimant alleges he slipped and fell when the stool slipped causing him to strike his head on the side of the van resulting in various eye and head injuries.


By way of these motions, Claimant seeks assignment of counsel to assist him in pursuing this matter. The Court notes that a motion to proceed as a poor person must be served upon the parties, as well as the county attorney where the action is triable or to the corporation counsel if the action is triable in New York City. (CPLR 1101 [c]). Here, the Court's file contains no affidavit of service demonstrating that Claimant has served the Attorney General and the county attorney. In and of itself such failures are a basis for denial of Claimant's motions.


Additionally, Claimant does not indicate any attempts to obtain counsel on his own behalf or via various legal services. In any event, it is well settled that the appointment of counsel is discretionary in civil matters. (Matter of Smiley, 36 NY2d 433, 438). Generally, counsel will not routinely be assigned except in a proper case, such as one involving "grievous forfeiture or loss of a fundamental right". (Morgenthau v Garcia, 148 Misc 2d 900, 903). A review of the pleadings before the Court in this case reveals a standard negligence case. As such, this matter fails to rise to the level warranting assignment of counsel. Rather, this case is of the conventional type in which counsel is traditionally retained on a contingent fee basis. Consequently, the Court declines to exercise its discretionary authority on this matter.


For purposes of clarification, the Court notes that the State's opposing papers on Motion No. M-65639 indicate that it recently received from Claimant papers entitled "Notice of Motion" relative to various discovery issues. Claimant's discovery motion, Motion No. M-65819, will be addressed in a separate Decision and Order.


In view of the foregoing, it is ORDERED, that Claimant's motions, Motion No. M-65639 and Motion No. M-65840, are DENIED.

October 10, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims