New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-015-229, Claim No. 113704, Motion No. M-73575


Motion for assignment of counsel and a speedy trial was denied.

Case Information

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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
August 17, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for the assignment of counsel and a speedy trial. The claim alleges the following:
Petitioner who is non-violent was placed in a maximum security prison. . . . with hostile, aggressive, anti-social and violent inmates, who would beat, assault, rob, extort, and sexually harass [incessantly] which is on-going and, current. Then petitioner was [single-out] willfully, purposefully. . . with 'intent' to cause psychological torment and torture. By the placement into special confinement [SHU] without ever committing serious offense of Tier III. . . . Plaintiff was placed into [SHU] Southport, for [correspondence] and improperly spreading his butt cheek's when in fact, such an order/direction is [unconstitutional] on its face. . . . Causing plaintiff [health] [safety], [well-being] to degenerate to the point of permanent damage [both] psychologically and physically, where officials have placed plaintiff in [medical restriction status] and [M.P.U.] which means plaintiff is [medically] and [psychologically] unable to program. . . . causing a cruel and unusual environment of [tortment] (sic) and [torture] against a non-violent inmate, for no other reason than the [hue] in plaintiff pigmentation (claim ¶ 2 [brackets in original]) .

CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. CPLR 1101 requires, inter alia, that an application for poor person status be supported by an affidavit setting forth the amount and sources of the moving party's income and assets and that he or she is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. In support of the instant application, claimant failed to set forth the amount of his income and assets and that he is unable to pay the costs, fees and expenses necessary to prosecute the action.

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 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]).

With respect to the claimant's request for a speedy trial, the claim was only recently filed and will be called for trial in due course.

Accordingly, the claimant's motion is denied.

August 17, 2007
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 16, 2007;
  2. Affidavit of James Pettus sworn to April 17, 2007 with exhibits.