New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2008-015-099, Claim No. 115629, Motion No. M-75424


Synopsis


Motion for assignment of counsel denied.

Case Information

UID:
2008-015-099
Claimant(s):
TYRONE WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115629
Motion number(s):
M-75424
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Tyrone Walker, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
December 3, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate acting pro se, moves for a reduction in the filing fee otherwise required to be paid pursuant to CPLR 1101(f) and the assignment of counsel. This is a bailment claim for the loss of certain items of claimant's personal property during the course of a transfer from Great Meadow Correctional Facility to Clinton Correctional Facility. As the Court reduced the filing fee for this claim by Order filed August 13, 2008, this branch of the motion is moot.

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 situations in which a litigant is faced with 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 Court does not view the allegations made here as so compelling as to warrant the assignment of counsel.

Additionally, claimant's failure to serve the county attorney as required by CPLR 1101 (c) warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

Accordingly, the claimant's motion is denied.



December 3, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Affidavit of Tyrone Walker sworn to July 29, 2008.