1. Affidavit in Support of James Lewis, pro se; and
2. Letter of Michael T. Krenrich, AAG.
Filed papers: Claim; Answer
This claim for money damages is based on allegations that in March 2005, at
Coxsackie Correctional Facility, Claimant was improperly charged with several
disciplinary infractions, leading to a sentence to be served in a Special
Housing Unit. His conviction was subsequently overturned in an Article 78
proceeding. Claimant also alleges that while he was at Coxsackie Correctional
Facility and later, after he was transported to Southport Correctional Facility,
he did not receive adequate or proper attention for a medical condition.
Claimant has already been granted poor person status pursuant to CPLR 1101(f),
and his filing fee was reduced from $50.00 to $35.00 by Order of this Court
dated December 6, 2006. By this motion, Claimant seeks permission to proceed as
a poor person (CPLR 1101) in order to have counsel assigned to represent him in
prosecuting this action (CPLR 1102[a]).
CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice
of the motion shall be served on all parties, and notice shall also be given to
the county attorney in the county in which the action is triable..." Claimant
does not indicate that he served the appropriate County Attorney. In addition,
according to a letter from defense counsel, he also failed to serve Defendant
State of New York. Failure to comply with this section renders an application
defective (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983];
Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]).
Even if Claimant had fully complied with all of the statutory service
requirements, however, his application would still be denied. The assignment of
counsel in civil matters is discretionary and is generally denied except in
cases involving grievous forfeiture or loss of a fundamental right (see
Matter of Smiley, 36 NY2d 433 ; Wills v City of Troy, 258 AD2d
849 [3d Dept 1999], lv to app dismissed 93 NY2d 1000 ).
Furthermore, the Court has no power to require the compensation of retained
counsel out of public funds (Matter of Smiley, supra). The instant claim
does not involve either a grievous forfeiture or a loss of a fundamental right,
and consequently Claimant would not be entitled to appointment of counsel even
if he had complied with the requirements for properly bringing this
Claimant's motion is DENIED.