New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2007-038-546, Claim No. 112655, Motion No. M-73209


Synopsis



Case Information

UID:
2007-038-546
Claimant(s):
ABDUL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112655
Motion number(s):
M-73209
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ABDUL-JABBOR MALIK, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, currently an inmate at Clinton Correctional Facility, requests an assignment of counsel to prosecute his claim for physical and emotional injuries allegedly sustained due to defendant’s alleged failure to treat certain medical conditions while he was incarcerated at Upstate Correctional Facility. An Order has previously been issued reducing the filing fee for this Claimant to $15.00 (Malik v State of New York, Ct Cl, Sept. 12, 2006, Sise, P.J., Claim No. 112655). 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 or medical malpractice that caused personal injury, does not present an issue that moves the Court to exercise its discretion to assign counsel.

Accordingly, for the reasons stated above, Motion No. M-73209 is DENIED.


June 27, 2007
Albany, New York

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



Papers considered:

(1) Claim #112655;

(2) Order granting reduced filing fee, filed September 12, 2006;

(3) Motion for Counsel Notice, dated April 2, 2007;

(4) Affidavit of Abdul-Jabbor Malik, sworn to April 5, 2007.