New York State Court of Claims

New York State Court of Claims

SENOR v. SUPT. P. BEHRLE G.C.F. NURSE ADBISTRATOR Ms. PREBLE et., al., #2008-038-605, Claim No. 114626, Motion No. M-74457


Synopsis


Claimant’s motion for appointment of counsel on claim relating to denial of medication and disciplinary proceedings denied. Motion must be construed as one for poor person relief, and it was not served upon the County Attorney (CPLR 1101 and 1102). Further, appointment of counsel not warranted because claim does not allege a grievous forfeiture or loss of fundamental right.
Appellate Result:
Affirmed, 63 AD3d 1454 (3d Dept, 6/25/09)

Case Information

UID:
2008-038-605
Claimant(s):
CHANEL SENOR
Claimant short name:
SENOR
Footnote (claimant name) :

Defendant(s):
SUPT. P. BEHRLE G.C.F. NURSE ADBISTRATOR Ms. PREBLE et., al.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114626
Motion number(s):
M-74457
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
CHANEL SENOR, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008
City:
Albany
Comments:

Official citation:

Appellate results:
Affirmed, 63 AD3d 1454 (3d Dept, 6/25/09)
See also (multicaptioned case)



Decision

Claimant, an incarcerated inmate, seeks a court appointed attorney to represent him on his claim against the State of New York. Appointment of an attorney is authorized when a person has been permitted to proceed as a poor person (see CPLR 1102[a]), and thus, claimant’s motion must be construed as an application to proceed as a poor person pursuant to CPLR 1101. As such, the motion must be served upon the County Attorney for the county in which the claim is triable (see CPLR 1101[c]), and a failure to do so requires that the motion be denied (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]). Although it appears that claimant served his motion upon the office of the Attorney General, it does not appear that he served it upon any other person or entity. Accordingly, the motion must be denied for that reason.
Even if the motion was properly served upon all who are entitled to notice of it, claimant has not asserted facts that would warrant an appointment of counsel. Although courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case, there is no absolute right to assigned counsel. Generally, courts will decline to appoint counsel unless the litigant is faced with a “grievous forfeiture or loss of a fundamental right” (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999], quoting Morgenthau v Garcia, 148 Misc 2d 900, 903 [NY Co Sup Ct 1990]; see also Matter of Smiley, 36 NY2d 433 [1975]; Jacox v Jacox, 43 AD2d 716 [2d Dept 1973]; Ward v State of New York, UID # 2007-038-536, Claim No. 113330-A, Motion No. M-72948, DeBow, J., May 29, 2007).

The instant claim alleges that a nurse at Greene Correctional Facility improperly stopped dispensing medication that had been prescribed for claimant’s back pain, and that she maliciously or in bad faith issued a misbehavior report charging claimant with failure to obey a direct order, smuggling, and taking unauthorized medication. In addition, claimant alleges that the guilty determinations following the disciplinary hearing were not supported by the evidence presented at the hearing. The Court does not view the allegations made within the claim to present a loss of liberty, grievous forfeiture or other compelling circumstances warranting an assignment of counsel, and thus, the Court would not be justified in exercising its discretion to appoint counsel.

Accordingly, it is

ORDERED, that Motion No. M-74457 is DENIED.

June 30, 2008
Albany, New York

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


Papers considered
:


(1) Claim No. 114626, filed December 19, 2007;

(2) Verified Answer, filed January 14, 2008;

(3) Motion for Appointment of Counsel, filed December 19, 2007;

(4) Affidavit in Support of Chanel Senor, sworn to November 29, 2007;

(5) Memorandum of Law in Support, dated November 29, 2007, with exhibits;

(6) Affidavit of Service, sworn to November 29, 2007.