New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, #2004-031-168, Claim No. 107432, Motion No. M-69061


Synopsis


Claimant's motion to compel discovery and for assignment of counsel is denied

Case Information

UID:
2004-031-168
Claimant(s):
TIMOTHY J. TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107432
Motion number(s):
M-69061
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
TIMOTHY J. TAYLOR, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 5, were read on motion by Claimant to "compel discovery" and for the assignment of counsel:
1. Claimant's Notice of Motion, filed September 9, 2004;
2. Claimant's unsworn statement, dated September 1, 2004;
3. Affirmation of Heather R. Rubinstein, Esq., dated October 26, 2004;
4. Claimant's unsworn statement (denominated "Affirmation"), dated October 27, 2004;
5. Filed documents: Claim, Verified Answer and previous Decision and Order filed August 9, 2004. This is Claimant's motion seeking to "compel discovery" and for the appointment of counsel to represent him in the preparation and trial of his claim against the State. In his underlying action, Claimant alleges medical malpractice and medical neglect relating to Defendant's failure to properly treat him for pneumonia. He alleges that this failure has resulted in permanent injuries to his lungs.
ASSIGNMENT OF COUNSEL
This is Claimant's second request for the assignment of counsel, his first having been filed approximately four months prior to his current motion. In his current motion, not only does Claimant fail to indicate what might have changed during that time, but he fails to specifically address his request for counsel at all. In any event, 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 dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). I have examined the underlying claim and find that this matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see Matter of Smiley, supra; Matter of St. Luke's-Roosevelt Hosp. Ctr., 159 Misc 2d 932, 936, mod and remanded, 215 AD2d 337).
MOTION TO COMPEL
It is not clear to the Court what relief Claimant seeks with his motion to compel. He asserts that he served discovery demands upon Defendant on April 25, 2003 and alleges that he did not receive responses. He then goes on to say that he did receive responses on July 30, 2003, but is not satisfied with them (Claimant's September 1, 2004 Statement, par. 6 and 7). He does not indicate how he was dissatisfied, nor does he attach or address Defendant's specific responses. He then goes on to allege that, at some point in time, he sent letters to the Court and to Defendant's counsel and that "[m]y requests from the Court to Submit Witness Admissions and Interrogatories has not been answered . . . ."

To the extent that Claimant seeks to compel more satisfactory responses to his previous demands from Defendant, Claimant is required to indicate what his demand was, how it was answered and why the response is inadequate. Attaching his demands and Defendant's responses to those demands to his motion papers would have assisted the Court in deciphering Claimant's request for relief. On the record before me, however, his request must be denied, as I can not determine the adequacy of Defendant's responses.

To the extent that Claimant seeks an order compelling Defendant to respond to a letter written either to Defendant or to the Court, again, on this record, I am unable to grant the relief requested. It appears that Claimant is requesting permission to serve Admissions and Interrogatories. To the extent that this is his request, the motion is denied as unnecessary as Claimant may, of course, serve any discovery demand permissible under the CPLR without Court approval.

Based on the foregoing, it is

ORDERED, Claimant's motion to compel discovery and for the assignment of counsel to represent him in this matter is denied.

December 8, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims