New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2007-015-192, Claim No. 111274, Motion No. M-73076


Motion for the assignment of counsel was denied.

Case Information

1 1.The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Frank Graham, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 24, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate acting pro se, moves pursuant to CPLR 1101 and 1102 for the assignment of counsel[2]. Claimant alleges that while incarcerated at Mt. McGregor Correctional Facility in August of 2004 Correction Officer Pierce intentionally destroyed his family photographs and issued unfounded misbehavior reports. The claimant alleges that Correction Officer Pierce acted in retaliation for the claimant's rejection of a prior sexual advance, various grievances the claimant had filed against the officer and his testimony at a hearing on behalf of another inmate in a matter involving Correction Officer Pierce.

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 only situations in which a litigant is faced with 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 as so compelling as to warrant the assignment of counsel.

Additionally, claimant's failure to serve the county attorney as required by CPLR 1101(c) warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

Accordingly, the claimant's motion is denied.

May 24, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Affidavit of Frank Graham sworn to March 14, 2007;
  2. Affirmation of Stephen J. Maher dated March 22, 2007;
  3. Reply "affirmation" of Frank Graham dated April 2, 2007 with exhibits.

[2].By order filed September 8, 2005, the Court reduced the filing fee for this claim and ordered the collection of the fee in the same manner that mandatory surcharges are collected pursuant to Penal Law 60.35(5). Thereafter the Chief Clerk received the fee directly from the claimant or someone on his behalf and by order dated October 25, 2005 the prior order was rescinded and any funds withheld from such account were directed to be restored.