New York State Court of Claims

New York State Court of Claims

CAMPOLITO v. THE STATE OF NEW YORK, #2007-044-513, Claim No. 107825, Motion No. M-72622


Claimant's fourth motion for assignment of counsel in negligent supervision of inmates claim is denied. The Court will issue subpoenas in accordance with previous decision and schedule trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, again moves for a trial date and to request assignment of counsel. Defendant opposes the request for assignment of counsel and for a trial preference.

Initially, it should be noted that claimant’s three prior requests for assignment of counsel in this same matter have been denied (Campolito v State of New York, Ct Cl, Feb. 7, 2006, Sise, P.J., Claim No. 107825, Motion No. M-71061; Campolito v State of New York, Ct Cl, Dec. 23, 2004, Lebous, J., Claim No. 107825, Motion No. M-69015 [UID # 2004-019-602]; Campolito v State of New York, Ct Cl, Feb. 25, 2004, Lebous, J., Claim No. 107825, Motion No. M-67994 [UID # 2004-019-518]). To the extent that claimant seeks reargument of the prior motions, he has not established that the Court misapprehended any relevant facts or misapplied any controlling principle of law. Consequently, reargument is not available (CPLR 2221[d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]). Moreover, claimant has not presented any newly discovered material evidence not available at the time of the original motions, nor has he shown that there has been a change in the law that would affect the prior determinations. Therefore, renewal is not appropriate (see CPLR 2221 [e] [2]; Foley v Roche, supra at 568).

In any event, even if this Court addressed claimant’s motion for assignment of counsel on its merits, it would be denied. Assignment of counsel in civil cases is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion No. M-69991 [UID # 2005-028-534]. The allegations of negligent supervision made in this claim are of the nature that would typically be handled by an attorney on a contingent fee basis. The Court finds that this claim does not warrant the exercise of its discretion to assign counsel (see Matter of Smiley, supra).[1] However, as stated in the previous decisions cited above, claimant is encouraged to continue attempts to obtain counsel, and if an attorney is retained, the Court would consider a request for another adjournment as well as for additional discovery.

The Department of Correctional Services (DOCS) previously represented that claimant’s safety could not be guaranteed at Elmira. In a previous decision, the Court specifically held that it would “leave it to the discretion of [DOCS] to make whatever transportation, housing, and/or security arrangements as are necessary to transport claimant to Binghamton for his trial, on the condition that claimant not be transported to or through Elmira Correctional Facility at any point” (Campolito v State of New York, Ct Cl, Dec. 23, 2004, Lebous, J., Claim No. 107825, Motion No. M-69015 [UID # 2004-019-602], p 3). Accordingly, the bifurcated trial will take place at the Court of Claims Courtroom in Binghamton, New York

Based upon his previous decision and order, and information supplied by Assistant Attorney General (AAG) Cocchiola, Judge Lebous executed subpoenas for six witnesses: Investigator George Armstrong, Paul Daughtery, Bruce McCormack, Maryla Nowakowska, Michael Stanley, and Helene Tomberelli (Campolito v State of New York, Ct Cl, Dec. 23, 2004, Lebous, J., Claim No. 107825, Motion No. M-69015 [UID # 2004-019-602]). The trial scheduled for August 22, 2005 was subsequently adjourned without date. Given the length of time which has elapsed since issuance of the subpoenas, defendant is directed to update the information which was contained in counsel’s letter dated March 18, 2005 and provide it to claimant and the Court within 60 days. This Court will re-issue subpoenas to be served in compliance with the procedure set forth in Judge Lebous’ decision and order, including the payment of fees and mileage for witnesses not currently stationed at Elmira (id. at 11). As Judge Lebous also ordered in December 2004, defendant is directed to produce any of those employees stationed at Elmira without the need for subpoenas or payment of statutory witness or mileage fees (id. at 10-11).

Claimant’s motion, to the extent that it seeks assignment of counsel and a trial preference is denied.[2] Once the updated information has been received from AAG Cocchiola, the Court will schedule a date for trial to take place at the Court of Claims Courtroom, Binghamton, New York.

February 13, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion for a trial date and assignment of counsel:

1) Notice of Motion filed on December 4, 2006; Affidavit of Anthony M. Campolito sworn to November 30, 2006.

2) Affirmation in Opposition of Carol A. Cocchiola, AAG, dated December 22, 2006.

3) “Reply to Affirmation” of Anthony M. Campolito dated December 29, 2006, in further support of claimant’s motion.

Filed Papers: Claim filed on June 4, 2003; Verified Answer filed on July 9, 2003; Amended Verified Answer filed on July 25, 2003.

[1]. Claimant’s argument that counsel is necessary because he is being “unconstitutionally” compelled to testify is without merit. This matter is a civil action and defendant “has the unequivocal right to call claimant as a witness in presenting its defense” (Campolito v State of New York, Ct Cl, Dec. 23, 2004, Lebous, J., Claim No. 107825, Motion No. M-69015 [UID # 2004-019-602]).
[2]. Claimant has failed to establish that he meets any of the criteria set forth in CPLR 3403 (a) and, thus he is not entitled to a trial preference.