Claimant, an inmate appearing pro se, moves for an order assigning counsel to
assist him in litigating this claim. The State of New York (hereinafter
"State") opposes the motion.
This claim asserts a claim based in medical malpractice alleging that the
State, among other things, withheld a medically prescribed back brace and ankle
brace; denied claimant access to a foot doctor for a pre-existing hammer toe
condition; and also denied him access to an eye doctor. This court previously
denied the State's motion for summary judgment dismissing this claim.
(Williams v State of New York, Ct Cl, filed January 29, 2002, Lebous, J.,
Claim No. 104590, Motion No. M-64029).
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 reducing the filing fee for this Claimant to $30.00 pursuant to Court of
Claims Act 11-a (1). (Williams v State of New York, Ct Cl, August 1,
2001, Read, P.J., Claim No. 104590). 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 private counsel
appear to have been unsuccessful to date. 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
Additionally, as a separate and distinct basis for denying claimant's motion, 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. (CPLR 1101 [c]). Claimant has
not submitted a proper affidavit of service in connection with this matter and,
as such, his failure to demonstrate service on the county attorney is, in and of
itself, a separate ground for denying his motion.
Accordingly, in light of the foregoing, it is ORDERED, that claimant's motion
for the assignment of counsel, Motion No. M-69793, is DENIED.
Claim, filed July 17, 2001.
ORDER, Read, P.J., Claim No. 104590, filed August 1, 2001.
DECISION AND ORDER, Lebous, J., Claim No. 104590, Motion No. M-64029, filed
January 29, 2002.
Notice of Motion No. M-69793, dated February 22, 2005, and filed March 1,
Affidavit of Thomas Williams, in support of motion, sworn to February 22, 2005,
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated March 17,
2005, and filed March 21, 2005.