New York State Court of Claims

New York State Court of Claims

ADORNO v. THE STATE OF NEW YORK, #2006-041-007, Claim No. 112123, Motion No. M-72237


Claimant’s motion for appointment of counsel in inmate assault case is denied.

Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
George C. AdornoPro Se
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
October 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for appointment of counsel to represent him in this action, in which claimant seeks recovery for injuries allegedly sustained in an inmate-on-inmate assault occurring on January 14, 2006 at Clinton Correctional Facility. In particular, claimant alleges that defendant's negligence caused him to be assaulted by another inmate despite claimant’s alleged warning to defendant that the facility contained “inmates who were my enemies,” and despite claimant’s alleged request to be placed in protective custody.

Claimant’s motion is denied.

Assuming claimant seeks assignment of counsel pursuant to CPLR § 1102(a), the “application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated” (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR § 1101[c]). The application has not been served, as required, on either the attorney for the defendant or “the county attorney in the county in which the action is triable” (CPLR § 1101[c]).

In addition, the claimant’s affidavit fails to contain the information required by CPLR § 1101(a), necessary for the relief sought under CPLR § 1102(a). Although claimant previously submitted a more detailed affidavit, with respect to his application for a reduced filing fee pursuant to CPLR § 1101(f), that affidavit, made more than eight months ago, was also not served on either the attorney for defendant or the appropriate county attorney.

Even had the claimant properly served the motion, the application would be denied.

While it is “clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case” (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102[a]; Matter of Smiley, 36 NY2d 433, 438 [1975]). A proper case may include proceedings where “there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right” (Morgenthau v Garcia, 148 Misc 2d 900, 903 (Sup Ct, NY County 1990]).

This is not a proper case for appointment of counsel since claimant seeks money damages for personal injury allegedly caused by defendant’s negligence. Such cases are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis. Claimant has not shown that he has made any attempt to retain an attorney on a contingent fee basis and states only that he “lacks the legal knowledge to fully prosecute [the] claim” and “cannot afford an attorney.”

The motion is denied.

October 3, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. Claimant’s Motion for Appointment of Counsel, filed September 5, 2006;
  1. Claimant’s Affidavit in Support of Motion for Appointment of Counsel, sworn to August 31, 2006;
  1. Claim, filed March 23, 2006, with attached Affidavit in Support of Application Pursuant to CPLR 1101(f), sworn to January 31, 2006.