New York State Court of Claims

New York State Court of Claims

CHIOVARO v. THE STATE OF NEW YORK, #2007-038-528, Claim No. 111585, Motion No. M-72744


Synopsis



Case Information

UID:
2007-038-528
Claimant(s):
MICHAEL CHIOVARO
Claimant short name:
CHIOVARO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111585
Motion number(s):
M-72744
Cross-motion number(s):

Judge:
W. BROOKS DEBOW
Claimant’s attorney:
MICHAEL CHIOVARO, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 4, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Southport Correctional Facility, requests permission to proceed as a poor person and for assignment of counsel to prosecute his claim for injuries sustained when he allegedly ingested shards of glass that were present in food served to him while he was incarcerated at Upstate Correctional Facility. He alleges that he sustained physical and emotional injuries.

The papers submitted by claimant do not demonstrate that his motion was served upon the county attorney in the county where the action is triable (see CPLR 1101 [c]), an omission that is fatal to his motion (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID #2006-028-579, Claim No. 109717, Motion No. M-71735, Sise, P.J. [July 27, 2006]). Therefore, claimant’s failure to comply with CPLR 1101 (c) renders his application defective and claimant’s motion is denied on that ground.

Even if the motion had been properly served on all who are entitled to notice, claimant has not asserted facts that would warrant assignment of counsel. Assignment of counsel is generally warranted only when an individual is facing a “loss of liberty or grievous forfeiture” (Matter of Smiley, 36 NY2d 433, 437 [1975]), and there is no absolute right to assignment of counsel in civil litigation (see id. at 438). While this Court may, in its discretion, assign counsel to a claimant seeking to prosecute a private action (see id.; Wilson v State of New York, 101 Misc 2d 924, 926 [Ct Cl 1979]), such relief will not generally be granted if there is not a loss of liberty or grievous forfeiture and there are no other compelling circumstances (see Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; see e.g. Jabbar v State of New York, #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [Oct. 20, 2006]; Bayron v State of New York, #2006-032-075, Claim No. 112389, Motion No. M-71902, Hard, J. [Sept. 1, 2006]). The instant claim, alleging negligence that caused personal injury, does not present an issue that moves the Court to exercise its discretion to assign counsel. Nor does claimant’s placement in a special housing facility and consequent limitation of library privileges warrant assignment of counsel to prosecute this personal injury claim.

Accordingly, for the reasons stated above, Motion No. M-72744 is DENIED.


April 4, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered:


(1) Motion for Appointment of Counsel, undated;

(2) Declaration in Support of Motion, sworn to December 21, 2006;

(3) Claim, filed November 3, 2005;

(4) Correspondence of Michele M. Walls, A.A.G., dated January 17, 2007.