New York State Court of Claims

New York State Court of Claims

WARD v. THE STATE OF NEW YORK, #2007-038-536, Claim No. 113330-A, Motion No. M-72948


Synopsis


Inmate claimant’s motion to proceed as a poor person and for assignment of counsel denied. Motion was not served upon the county attorney in the county where the action is triable (see CPLR 1101[c]), and claim alleging personal injury did not present a loss of liberty, grievous forfeiture, or other compelling circumstance warranting assignment of counsel.

Case Information

UID:
2007-038-536
Claimant(s):
KENNETH WARD
Claimant short name:
WARD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113330-A
Motion number(s):
M-72948
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
KENNETH WARD, Pro se
Defendant’s attorney:
No appearance
Third-party defendant’s attorney:

Signature date:
May 29, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate at Franklin Correctional Facility (Franklin CF), requests permission to proceed as a poor person and for assignment of counsel to prosecute his claim for injuries sustained when he allegedly slipped on loose tiles and fell in a shower room at Franklin CF. His claim also seeks damages for the fear he allegedly sustained as a result of correction officers telling other inmates in claimant’s housing unit that the shower room was closed and unavailable for their use because claimant had filed a grievance about the condition of the shower room.

Although claimant has submitted an affidavit of service attesting to service of the instant motion upon the Attorney General, claimant’s submission does 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]). Claimant’s failure to comply with CPLR 1101 (c) renders his application defective and the motion is therefore denied on that ground.

Even assuming that 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]). 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, UID #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [Oct. 20, 2006]; Bayron v State of New York, UID #2006-032-075, Claim No. 112389, Motion No. M-71902, Hard, J. [Sept. 1, 2006]). The instant claim, alleging personal injury, does not present a loss of liberty, a grievous forfeiture, or other compelling circumstances that warrant the assignment of counsel.

Accordingly, for the reasons stated above, Motion No. M-72948 is DENIED.


May 29, 2007
Albany, New York

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


Papers Considered:


(1) Notice of Motion for Permission to Proceed as a Poor Person, dated February 6, 2007;

(2) Petition (for poor person relief and assignment of counsel), undated;

(3) Verified Claim, with exhibits A-F;

(4) Affidavit of Service, sworn to February 9, 2007.