Claimant, an inmate appearing pro se, moves for an order assigning counsel to
assist him in litigating this claim pursuant to CPLR 1101 (M-69496). Claimant's
second motion seeks the return of confiscated legal papers and medical evidence.
(M-69497). The State of New York (hereinafter "State") opposes both
The underlying claim alleges that correction officers at Southport Correctional
Facility physically assaulted claimant on November 18, 2003 causing serious
personal injuries including broken fingers and a spinal cord injury. The claim
alleges that a notice of intention was served on the attorney general on
February 13 and 20, 2004. (Claim, ¶ 11). The claim itself was filed with
the Clerk of the Court on November 12, 2004.
Assignment of Counsel (Motion No. M-69496
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). An Order has previously been issued by this
court denying claimant's application for a fee reduction in this matter because
claimant was found to possess sufficient resources to pay the statutory fee.
(Devers v State of New York, Ct Cl, November 26, 2004, Sise, P.J., Claim
No. 110088). A review of the pleadings before the court in this case reveals a
case of average complexity and the type of case in which attorneys are typically
retained on a contingency fee basis. That having been said, the court
acknowledges that claimant's attempts to retain Prisoners' Legal Services of New
York and various private attorneys were unsuccessful. Nevertheless, the court
finds that this case fails to rise to the level warranting assignment of
counsel. Consequently, the court declines to exercise its discretionary
authority on this matter.
Finally, to the extent that claimant's papers seek a jury trial, such request
is denied. There is no right to a jury trial in the Court of Claims. (Court of
Claims Act § 12 ; Graham v Stillman, 100 AD2d 893).
Confiscated legal papers and medical evidence (Motion No. M-69497)
Claimant also moves for an order directing Southport Correctional Facility
administrators to return to him legal papers and medical evidence allegedly
confiscated by them. It appears that claimant provided some of his legal papers
to another inmate who also claims to have been assaulted by correction officers.
Apparently, claimant's papers were discovered by correction officers in that
other inmate's cell and confiscated. Claimant was cited for two rule
violations, namely "unauthorized exchange" and "providing legal assistance."
(Cl.'s Ex. A).
Claimant's request for the return of the confiscated legal papers and medical
evidence is equitable in nature and must be denied. It is well-settled that
"[a]s a court of limited jurisdiction, the Court of Claims has no jurisdiction
to grant strictly equitable relief." (Court of Claims Act § 9; Madura v
State of New York, 12 AD3d 759, lv denied 2005 WL 391262; Ozanam
Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671;
Matter of Gross v Perales, 72 NY2d 231, 236). Rather, the equitable
powers possessed by the Court of Claims are limited to those set forth in the
Court of Claims Act or incidental to enforcement of a claim for money damages.
This court is without power to direct the equitable relief requested. Whether
claimant may be able to obtain access to these documents by means of ordinary
discovery demands in the court of this claim remains to be seen.
In view of the foregoing, it is ORDERED, that claimant's motion for the
assignment of counsel, Motion No. M-69496, is DENIED; and claimant's motion for
an order directing correctional officials to return his confiscated legal
papers, Motion No. M-69497, is DENIED as well.
Claim, filed November 12, 2004.
Verified Answer, filed December 13, 2004.
Notice of Motion No. M-69496, dated November 15, 2004, and filed November 17,
Affidavit of Lawrence Devers, in support of Motion No. M-69496, sworn to
November 8, 2004, with attachments.
Memorandum of Law, in support of Motion No. M-69496, dated November 15,
Affidavit of Lawrence H. Devers, in support of Motion No. M-69496, sworn to
November 10, 2004.
Affirmation of Geoffrey B. Rossi, AAG, in opposition to Motion No. M-69496,
dated January 19, 2005, and filed January 21, 2005.
"Affirmation [sic] in Response", of Lawrence H. Devers, in support of
Motion No. M-69496, dated January 23, 2005.
Notice of Motion No. M-69497, dated December 2, 2004, and filed December 6,
"Affirmation [sic]" of Lawrence H. Devers, in support of Motion No.
M-69497, dated December 2, 2004, with attached exhibit.
Affirmation of Geoffrey B. Rossi, AAG, in opposition to Motion No. M-69497,
dated January 19, 2005, and filed January 21, 2005.
"Affirmation [sic] in Response" of Lawrence H. Devers, in support of
Motion No. M-69497, dated January 23, 2005, and filed January 26, 2005.
"Affirmation [sic] to Amend and Consolidate Claimant's Opposition to
Defendant's Motion to Deny Claimant's Motion to Compel and Appoint Counsel", of
Lawrence H. Devers, in support of Motion Nos. M-69496 and M-69497, dated
February 28, 2005, and filed March 3, 2005, with attached exhibits.