New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2004-019-537, Claim No. 99979, Motion No. M-68292


Synopsis


Claimant's motion for assignment of counsel is denied.


Case Information

UID:
2004-019-537
Claimant(s):
ABEL HERNANDEZ
Claimant short name:
HERNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99979
Motion number(s):
M-68292
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ABEL HERNANDEZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 4, 2004
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. The State of New York (hereinafter "State") opposes the motion.

Claimant alleges that he was assaulted by at least one other inmate due to the negligent supervision of the State while incarcerated at Elmira Correctional Facility on November 7, 1998.


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 upon corporation counsel if the action is triable in New York City. (CPLR 1101 [c]). The affidavit of service in this matter indicates that the motion papers were served on the Office of the Attorney General, but not the applicable county attorney. Claimant's failure to establish service on the county attorney 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 matter of average complexity. In sum, this case 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-68292, is DENIED.


May 4, 2004
Binghamton, New York

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


The court has considered the following papers in connection with this motion:

  1. Claim, filed March 15, 1999.
  2. "Application for the Assignment of Counsel and to Proceed In-Forma Pauperis", Motion No. M-68292, sworn to March 30, 2004, and filed April 5, 2004, with attached exhibits.
  3. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated April 16, 2004, and filed April 19, 2004.