New York State Court of Claims

New York State Court of Claims

CASTRO v. THE STATE OF NEW YORK, #2005-019-528, Claim No. 110449, Motion No. M-69879


Synopsis


Claimant's motion for the assignment of counsel, Motion No. M-69879, is denied.

Case Information

UID:
2005-019-528
Claimant(s):
EMANUEL CASTRO, #00-A-1302
Claimant short name:
CASTRO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110449
Motion number(s):
M-69879
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
EMANUEL CASTRO, 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:
April 18, 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 on negligent supervision arising from claimant's assault by an unknown assailant while incarcerated in Elmira Correctional Facility. An Order has previously been issued by this Court reducing the filing fee for this claimant to $20.00 pursuant to Court of Claims Act 11-a (1). (Castro v State of New York, Ct Cl, February 15, 2005, Sise, P.J., Claim No. 110449).


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). 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. 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, the court notes claimant's reference to the need for a Spanish interpreter. (Claimant's Affidavit, Wherefore clause). To the extent that claimant is requesting the assistance of a Spanish interpreter at trial, the court deems this request to be premature since this matter has yet to be scheduled for trial. Nevertheless, when this matter is scheduled for trial, claimant will receive a letter from the court notifying him of a trial date and at that time claimant should submit a written request to the court for the assistance of an interpreter at trial.


Accordingly, in light of the foregoing, it is ORDERED, that claimant's motion for the assignment of counsel, Motion No. M-69879, is DENIED.


April 18, 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 February 2, 2005.
  2. ORDER, Sise, P.J., Claim No. 110449, filed February 15, 2005.
  3. "Affidavit in Support of Application", Motion No. M-69879, of Emanuel Castro, sworn to January 11, 2005, and filed February 2, 2005.
  4. "Affidavit in Support of Application Pursuant to CPLR 1101(f)", of Emanuel Castro, sworn to January 11, 2005.
  5. Letter from Christine C. Kelly, Assistant Albany County Attorney, dated February 9, 2005, and received February 14, 2005.
  6. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated April 7, 2005, and filed April 11, 2005.