New York State Court of Claims

New York State Court of Claims

WYNN v. THE STATE OF NEW YORK, #2002-019-587, Claim No. 106689, Motion No. M-65960


Synopsis


Claimant's motion for assignment of counsel is denied.

Case Information

UID:
2002-019-587
Claimant(s):
JOHNATHAN WYNN
Claimant short name:
WYNN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106689
Motion number(s):
M-65960
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOHNATHAN WYNN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 25, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order assigning counsel to assist him in litigating this matter pursuant to CPLR 1101 and 1102. The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed September 25, 2002.
  2. ORDER, Read, P.J., Claim No. 106689, filed October 18, 2002.
  3. "Affidavit in Support of Application pursuant to C.P.L.R. 1101 (f)", of Johnathan Wynn, sworn to September 18, 2002, and filed September 25, 2002.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated October 28, 2002, and filed October 30, 2002.

This Claim alleges that the State was negligent in failing to protect Claimant from an assault by various correction officers at Southport Correctional Facility on August 29, 2002.


Claimant has already obtained an Order reducing the filing fee to $15.00 pursuant to CPLR 1101 (f). (Wynn v State of New York, Ct Cl., October 18, 2002, Read, P.J., Claim No. 106689). Claimant alleges he has no income, no property and that no other person is beneficially interested in the recovery sought. There are no other costs necessary to prosecute a claim in the Court of Claims, and thus no other privileges are available under CPLR article 11.


In any event, 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, Claimant's affidavit of service reveals that he has failed to serve the county attorney which is, in and of itself, grounds for denying this motion.


Additionally, as a separate and distinct basis for denial of Claimant's motion, 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 case of average complexity. Furthermore, the Court notes that Claimant does not indicate any attempts to obtain counsel on his own behalf or via various legal services. In sum, this matter fails to rise to the level warranting assignment of counsel. Consequently, the Court declines to exercise its discretionary authority on this matter.


In view of the foregoing, it is ORDERED, that Claimant's motion, Motion No. M-65960, is DENIED.


November 25, 2002
Binghamton, New York

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