New York State Court of Claims

New York State Court of Claims

LARABY v. THE STATE OF NEW YORK, #2007-015-187, Claim No. 113283, Motion No. M-72992


Synopsis


Motion for leave to proceed as a poor person and for the assignment of counsel was denied.

Case Information

UID:
2007-015-187
Claimant(s):
EDWARD LARABY
Claimant short name:
LARABY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113283
Motion number(s):
M-72992
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edward Laraby, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralBy: No Appearance
Third-party defendant’s attorney:

Signature date:
May 15, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, acting pro se, seeks leave to proceed as a poor person and for the assignment of counsel. The Court previously granted claimant's request for a reduction of the filing fee by Order filed February 8, 2007 (Sise, PJ). This claim arises out of the allegation that the claimant "has been singled out by corrections officials and systematically degraded, ridiculed, scorned, physically and verbally mistreated, and threatened because he is a white Rastafarian" (see Claim, ¶ 10).

CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel has since been interpreted to include situations in which a litigant is faced with a grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not view the allegations made here so compelling as to warrant the assignment of counsel.

Inasmuch as the filing fee has been addressed in the prior order, and the prosecution of this matter requires no additional payment of costs or fees, poor person status is unnecessary.

Accordingly, the claimants motion is denied in its entirety.



May 15, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 29, 2007;
  2. Affidavit of Edward Laraby sworn to January 29, 2007.