New York State Court of Claims

New York State Court of Claims

DEVERS v. THE STATE OF NEW YORK, #2005-019-516, Claim No. 110088, Motion Nos. M-69496, M-69497


Synopsis


Claimant's motions for assignment of counsel and for an order directing the return of confiscated legal papers are denied.

Case Information

UID:
2005-019-516
Claimant(s):
LAWRENCE H. DEVERS
Claimant short name:
DEVERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110088
Motion number(s):
M-69496, M-69497
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LAWRENCE H. DEVERS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 8, 2005
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 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 motions.[1]

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 [3]; 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.


March 8, 2005
Binghamton, New York

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


The court has considered the following papers in connection with these motions:
  1. Claim, filed November 12, 2004.
  2. Verified Answer, filed December 13, 2004.
  3. Notice of Motion No. M-69496, dated November 15, 2004, and filed November 17, 2004.
  4. Affidavit of Lawrence Devers, in support of Motion No. M-69496, sworn to November 8, 2004, with attachments.
  5. Memorandum of Law, in support of Motion No. M-69496, dated November 15, 2004.
  6. Affidavit of Lawrence H. Devers, in support of Motion No. M-69496, sworn to November 10, 2004.
  7. Affirmation of Geoffrey B. Rossi, AAG, in opposition to Motion No. M-69496, dated January 19, 2005, and filed January 21, 2005.
  8. "Affirmation [sic] in Response", of Lawrence H. Devers, in support of Motion No. M-69496, dated January 23, 2005.
  9. Notice of Motion No. M-69497, dated December 2, 2004, and filed December 6, 2004.
  10. "Affirmation [sic]" of Lawrence H. Devers, in support of Motion No. M-69497, dated December 2, 2004, with attached exhibit.
  11. Affirmation of Geoffrey B. Rossi, AAG, in opposition to Motion No. M-69497, dated January 19, 2005, and filed January 21, 2005.
  12. "Affirmation [sic] in Response" of Lawrence H. Devers, in support of Motion No. M-69497, dated January 23, 2005, and filed January 26, 2005.
  13. "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.



[1]Claimant's reply papers objected to the late service of the State's opposing papers. The State's affidavits of service indicate that its opposing papers were mailed to claimant on January 19, 2005 for the return dates of January 26, 2005. Service of opposing papers is deemed completed upon mailing (CPLR 2214) and, as such, the State's opposing papers were timely served on claimant. In any event, the court adjourned both motions from January 26, 2005 to March 2, 2005 in order to allow claimant time to make additional submissions which he has done.