New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2005-019-523, Claim No. 104590, Motion No. M-69793


Synopsis


Claimant's motion for the assignment of counsel is DENIED.


Case Information

UID:
2005-019-523
Claimant(s):
THOMAS WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104590
Motion number(s):
M-69793
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
THOMAS WILLIAMS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 24, 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. 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 matter.


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.


March 24, 2005
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 July 17, 2001.
  2. ORDER, Read, P.J., Claim No. 104590, filed August 1, 2001.
  3. DECISION AND ORDER, Lebous, J., Claim No. 104590, Motion No. M-64029, filed January 29, 2002.
  4. Notice of Motion No. M-69793, dated February 22, 2005, and filed March 1, 2005.
  5. Affidavit of Thomas Williams, in support of motion, sworn to February 22, 2005, with attachment.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated March 17, 2005, and filed March 21, 2005.