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 ), 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 ; 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.
(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.