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