New York State Court of Claims

New York State Court of Claims

MYERS v. STATE OF NEW YORK, #2004-015-422, Claim No. 109325, Motion Nos. M-68544, M-68545


Court denied claimant's motion seeking assignment of counsel and an order directing the Attorney General to make a motion to dismiss the claim after Attorney General rejected claimant's unverified claim as suggested by Court of Appeals in Lepkowski v State of New York, 1 NY3d 201.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-68544, M-68545
Cross-motion number(s):

Claimant's attorney:
Michael Myers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 27, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motions seeking the assignment of an attorney to represent him ( M-68544) and an order directing the Attorney General to make a motion to dismiss the claim (M-68545) are denied. The unverified claim filed on May 7, 2004 seeks to recover damages for medical negligence/malpractice and the alleged loss of claimant's personal property on "11-7-03 and 10-2-03 and in the year on or so 2001 and 2004". The events giving rise to this claim allegedly occurred at Great Meadow Correctional Facility, Clinton Correctional Facility, and Franklin Correctional Facility.

Claimant moves for an order assigning an attorney to represent him alleging among other things that the claim is complicated, he has no funding to pay the cost of duplicating a tape recording of a hearing and that he is of low intelligence. Defense counsel submitted an affirmation in opposition in which he alleges that the motion papers seeking an assignment of counsel (M-68544) were never served upon the Attorney General and the State therefore cannot respond to the motion. Claimant's "affirmation of service"[1] executed on May 1, 2004 and submitted on the motion does not allege that service of a motion seeking appointment of counsel was served upon the Attorney General.

Claimant's application for the appointment of counsel must be denied. Even assuming, arguendo, that the motion papers were served upon the defendant claimant offered no proof that his application was served upon the appropriate 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; People v Calhoun, 2 Misc 3d 1009; Harris v State of New York, 100 Misc 2d 1015). Moreover, 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 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 dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.

As noted above claimant also moved for an order directing the Attorney General to make a motion to dismiss the instant claim. This motion was prompted by the Attorney General's rejection and return of an unverified claim which claimant had served by certified mail, return receipt requested. Claimant alleges in his affirmation in support of the motion that the Attorney General's rejection of his claim was improper absent a properly filed motion by the Attorney General to dismiss the action. He seeks an order allowing the action to go forward and directing the Attorney General to properly file motions with the Court.

Defense counsel opposed the motion citing CPLR 3022 and the Court of Appeal's decisions in Lepkowski v State of New York (1 NY3d 201) and Matter of Miller v Board of Assessors (91 NY2d 82) to explain the State's rejection and return of claimant's unverified claim. The defendant has not served an answer to the claim nor has it moved to dismiss the claim.

The jurisdiction of the Court of Claims is "limited to actions seeking money damages against the State in appropriation, contract or tort" and does not include "strictly equitable relief . . . with the return of the money to follow as a consequence of the equitable relief, if granted" (Psaty v Duryea, 306 NY 413, 416-417; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670. The Court's limited jurisdiction has been cited as reason to deny an application for a preliminary injunction (see Johnson v State of New York, Ct Cl, January 29, 2004 [Claim No. 107834, Motion No. 67809, UID # 2004-019-510] Lebous, J., unreported; Brooks v State of New York, Ct Cl, March 20, 2003 [Claim No. 106230, Motion No. M-66017, UID # 2003-028-520] Sise, J., unreported) and an order enjoining and restraining the State from various acts during the pendency of a claim (Johnson v State of New York, supra).

This Court has also been found to be without jurisdiction to mandamus a state officer to take action similar to that which claimant herein requests (see Matter of Silverman v Comptroller of State of N. Y., 40 AD2d 225). "[T]he extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16)" (Matter of Ceballos v Starky, 239 AD2d 414). The determination of whether and/or when to make a motion is discretionary and not ministerial. It is therefore apparent that the claimant, who has not sought a default judgment for the defendant's failure to answer, is not entitled to the relief requested in Motion No. M-68545. As a result, the motion is denied.

August 27, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
Motion No. M-68544:
  1. Notice of motion, undated;
  2. "Affirmation" of Michael Myers, undated;
  3. Affirmation of Glenn C. King dated July 2, 2004;

Motion No. M-68545:

  1. Notice of motion, undated;
  2. "Affirmation" of Michael Myers, undated;
  3. Affirmation of Glenn C. King dated July 2, 2004;

[1]This document and the accompanying "affirmation in support of motion for counsel" while arguably admissible in a Federal Court action (see 28 USC § 1746) are generally not cognizable in New York practice. Here, however, since no objection to the use of a defective affidavit was made this technical defect is deemed waived and the documents have been considered by the Court (see Sam v Town of Rotterdam, 248 AD2d 850).