New York State Court of Claims

New York State Court of Claims

BENJAMIN v. THE STATE OF NEW YORK, #2002-032-040, Claim No. 107065, Motion No. M-66257


Synopsis



Case Information

UID:
2002-032-040
Claimant(s):
KALVIN BENJAMIN
Claimant short name:
BENJAMIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107065
Motion number(s):
M-66257
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Kalvin Benjamin, 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 5, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

xxx

Claimant seeks leave to proceed as a poor person pursuant to CPLR 1101. Although his motion is technically defective, in that the County Attorney for the county in which the claim arose was not served, the Court will nevertheless address the substance of his request for relief.
The claim in this action alleges that claimant was assaulted by another inmate at Bare Hill Correctional Facility in January 2001.
Claimant's request for reduction of the filing fee has already been addressed in the Order of Judge Richard E. Sise, issued January 10, 2003. Thus, the only relief available under CPLR 1102 that claimant can be seeking at this juncture is the assignment of an attorney, who would serve without compensation.
Although courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case, such private litigants have no absolute right to assigned counsel. Because appointed counsel in these situations must provide representation without receiving any compensation, courts should not make such appointment unless the litigant is faced with a "grievous forfeiture or loss of a fundamental right" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], quoting Morgenthau v Garcia, 148 Misc 2d 900, 902 [NY Co Sup Ct 1990]; see also Matter of Smiley, 36 NY2d 433 [1975];
Jacox v Jacox, 43 AD2d 716
[2d Dept 1973]).

Because the instant claim does not involve either a grievous forfeiture or loss of a fundamental right, the Court would not be justified in exercising its discretion to appoint an attorney to appear without compensation.
Notwithstanding the technical defect in claimant's motion, his request to be granted poor person status has been considered on the merits and is denied.


May 5, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion for permission to proceed as a poor person:
1. Notice of Motion and Supporting Affidavit of Kalvin Benjamin, pro se

2. Affirmation in Opposition of Dennis M. Acton, Esq., AAG

Filed papers: Claim; Answer