New York State Court of Claims

New York State Court of Claims

FERGUSON v. THE STATE OF NEW YORK, #2003-015-329, Claim No. 107441, Motion No. M-66560


Synopsis


Court denied pro se inmate's application for assignment of counsel to claim for personal injuries

Case Information

UID:
2003-015-329
Claimant(s):
COLIN FERGUSON
Claimant short name:
FERGUSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107441
Motion number(s):
M-66560
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Colin Ferguson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
June 10, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant's application for poor person relief pursuant to CPLR § 1101 and for the assignment of counsel to pursue his claim pursuant to CPLR § 1102 (a) is denied. The claim filed March 10, 2003 seeks to recover money damages for negligently caused personal injuries sustained by claimant at approximately 9:56 a.m. on April 7, 2002 at the special housing unit (SHU) of Great Meadow Correctional Facility at Comstock, New York when he fell against the sink and toilet of his cell causing injury to his right shoulder and left knee.

Claimant's application must be denied since he failed to allege in his supporting affidavit any facts from which the merits of his claim might be ascertained (CPLR 1101 (a); Matter of Teeter v Reed, 57 AD2d 735). Additionally, claimant offered no proof that the application was served upon the Washington County Attorney as required by statute (CPLR 1101 (c)). Failure to serve a county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

As to the request for assignment of counsel, 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 (Matter of Smiley, 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 (Wills v City of Troy, 258 AD2d 849, lv to appeal dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


June 10, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Affidavit of Colin Ferguson sworn to February 27, 2003.