New York State Court of Claims

New York State Court of Claims

Rios v. STATE OF NEW YORK, #2006-018-502, Claim No. 110457, Motion No. M-70748


Claimant's motion for assignment of attorney is denied.

Case Information

LUIS RIOS, Individually and as Administrator of the Estate of RAMON GILBERT RIOS, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 17, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion for an order assigning him an attorney to prosecute this claim.

A letter received by the Assistant Attorney General assigned to this case indicates that the Attorney General's Office was never served with a copy of the motion papers. An affidavit of service, attached to the motion papers, indicates service was made upon Court of Claims and Timothy Mulvey, Assistant Attorney General.

The Court notes initially that Claimant's application is insufficient. Claimant has failed to set forth the amount and sources of his income, a list of his property, or sufficient facts in his application for the Court to determine the merit of the claim as required by CPLR 1101(a). CPLR 1101(c) also requires that a copy of the notice of motion be served upon the County Attorney in the county in which the action is triable. Claimant has not submitted any affidavit of service indicating that the County Attorney was served. The motion can be denied on this ground alone (see Bowman v State of New York, 229 AD2d 1024). However, even if the County Attorney had been served, Claimant's motion would still be denied.

The appointment of counsel in this type of case, which is for personal injuries and wrongful death as a result of the State's alleged medical malpractice, is not required by the constitution or by statute; it is discretionary (see Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). For litigants involved in private litigation, absent statutory authority therefor, the Courts have no authority to direct the provision of counsel or to require compensation of retained counsel out of public funds (Matter of Smiley, supra). Furthermore, negligence cases are typically handled by attorneys on a contingency basis. After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (see Matter of Smiley, supra; Courtwright v State of New York, Ct Cl, filed March 20, 1997, Corbett, J., Claim No. 95042, Motion No. M-54516). Furthermore, although a few attorneys have declined, Claimant may still be able to obtain another attorney to represent him on a contingency fee basis.[1]

Based upon the foregoing, Claimant's motion is DENIED in its entirety.

January 17, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Affidavit of Luis Rios, sworn to September 14, 2005, in support, with

exhibits attached thereto.........................................................................1

Letter from Timothy P. Mulvey, Esquire, Assistant Attorney General,

dated October 17, 2005...........................................................................2

[1] Claimant was represented by counsel who made application to the Court and for reasons set forth to the Court in camera was relieved of further representation (Motion No M-70075, Decision and Order filed August 23, 2005).