New York State Court of Claims

New York State Court of Claims

DAOOD v. THE STATE OF NEW YORK, #2002-032-038, Claim Nos. 104049, 104050, Motion Nos. M-66243, M-66242


Claimant's motions for appointment of counsel are denied on the grounds that they were not brought in connection with application to proceed as a poor person and also because they do not present situations in which claimant is faced with a grievous forfeiture or loss of a fundamental right.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104049, 104050
Motion number(s):
M-66243, M-66242
Cross-motion number(s):

Claimant's attorney:
Ali Daood, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:

Signature date:
May 1, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, representing himself
pro se, has commenced two actions, both of which arose at Great Meadow Correctional Facility. In Claim No. 104049, claimant alleges that he was assaulted by a correction officer in December 2000, and following the assault, he was provided with inadequate medical treatment for a broken bone in his right hand. In Claim No. 104050, claimant alleges that also in December 2000, when he was transferred from Great Meadow Correctional Facility to Central New York Psychiatric Center, the majority of the personal property that was in his cell was lost or destroyed, perhaps intentionally, by correction officers at Great Meadow.
Claimant has now brought the instant motions (Motion No. M-66243, which relates to Claim No. 104049 and Motion No. M-66242, which relates to Claim No. 104050), seeking Court appointed counsel to represent him in prosecuting these actions. He asserts that he requires such representation because of mental disease and that he lacks the capacity to understand the proceedings. In a letter that has been accepted in support of both motions, Dr. Marcelle A. Mostert, a psychiatrist at Spectrum Assertive Community Treatment in Buffalo, New York, informs the Court that claimant is currently a client at that agency and lists his several diagnoses, each indicating some significant level of mental disability. Dr. Mostert concludes that claimant's anxiety "will make it difficult for him to represent himself adequately" and that he has been unable to find an attorney to represent him. Counsel for defendant opposes the motions, asserting that appointment of counsel is inappropriate where claimant is not threatened with deprivation of liberty or a grievous forfeiture and where the subject of the litigation is not unduly complex.

At the outset, the Court notes that claimant's applications are not in proper form, as the Court's authority to assign counsel in civil actions for money damages is to direct such a benefit to someone who has been granted permission to proceed as a poor person (CPLR 1101, 1102). Nevertheless, in the interest of judicial economy and to eliminate unnecessary hurdles to a litigant who is appearing
pro se, the Court will address the merits of his applications even though claimant did not make proper applications under these statutes.
The Third Department has recently restated the relevant law:

While Matter of Smiley (36 NY2d 433) made clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case (see, CPLR 1102[a]; Matter of Smiley, supra, at 438). The matter at hand is not, however, such a case, for the situation it presents is not one wherein the litigant is faced with a "grievous forfeiture or loss of a fundamental right" (Morgenthau v Garcia, 148 Misc2d 900, 903).

(Wills v City of Troy, 258 AD2d 849 [3d Dept 1999].) Wills presented a situation very similar to the instant claims, for the pro se plaintiff had commenced suit against the City of Troy seeking money damages for injuries allegedly inflicted by municipal police officers. A number of the situations in which a civil litigant may be entitled to appointed counsel are referenced in Morgenthau v. Garcia (148 Misc2d 900, supra [NY Co Sup Ct 1990]; see also In Re: Matter of St. Luke's -Roosevelt Hospital Center, 159 Misc 2d 932, 934-935 [NY Co Sup Ct 1993], modified on other grounds 215 AD2d 337), but with those exceptions, "there appears to be no absolute right in indigent civil litigants to assigned counsel "..." and there is no system in place where publicly compensated attorneys may be assigned to represent such indigent litigants in civil cases" (id, at 903).
Claimant's motions are denied on the ground that they are brought in improper form and because these claims are not appropriate ones in which to require private counsel to provide representation without any compensation.

May 1, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motions for appointment of counsel:
1-2. Notices of Motions
  1. Letter in support of motions
4. Affirmation in Opposition of Dennis M. Acton, Esq., AAG

Filed papers: Claims; Answers