New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-042, Claim No. 113705, Motion No. M-74651


Pro se inmate's motion for assignment of counsel, speedy trial and a discovery conference was denied.

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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 26, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for the assignment of counsel, a telephone conference to discuss discovery and settlement or, alternatively, to “move forward to trial”. Claimant alleges the following as the basis for his claim:
"Claimant, who is non-violent, was placed into a maxium [sic] security prison, without committing a serious prison infraction. See: Title 7 NYCRR 280.2 (B) (Therein) causing plaintiff to be beaten, assaulted, robbed, extorted, and sexual harassed (incessintly [sic]) (Thereby) denying plaintiff [reasonable safety] See Farmer v Brennan, 114 S.Ct. 1970. These acts are 'on-going' and 'current'.

Plaintiff has no (violence) on his criminal rap sheet or institutional record, or personal history, placing plaintiff life, safety, health, and well-being in (constant) jeopardy, as a non-violent inmate, while in the care, custody and control of (D.O.C.) which is a State Governmental entity."
CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel has since been interpreted to include those situations in which a litigant is faced with a grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The allegations in this claim do not warrant the assignment of counsel.

In addition, the motion for the assignment of counsel is procedurally defective as the claimant failed to submit a properly sworn affidavit in support of the motion (see CPLR 1101[a]) and failed to serve the county attorney as required (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

To the extent the claimant requests a discovery conference, the request is denied (see 22 NYCRR § 206.10). Claimant is advised to secure the desired discovery by use of the procedural devices authorized by Article 31 of the CPLR. The matter will be scheduled for trial in due course. Based on the foregoing, the claimant's motion is denied in its entirety.

May 26, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 23, 2008;
  2. Unsworn, undated Affidavit/Affirmation of James Pettus;
  3. Letter dated March 31, 2008 from Glenn C. King.