New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2008-038-614, Claim No. 112655, Motion No. M-75186


Claimant’s motion for assignment of counsel due to need for expert witnesses to prosecute pro se inmate’s medical malpractice claim 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:
Defendant’s attorney:
No appearance
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate incarcerated at a State correctional facility, has filed this claim seeking damages for alleged medical malpractice. He moves for assignment of counsel to prosecute the claim, on the grounds that he requires the assistance of counsel because the claim requires presentation of expert testimony, that he cannot locate or communicate with an expert who is outside the correctional facility, and that he lacks the knowledge to be able to effectively examine an expert witness at trial. The instant motion will be denied for the same reasons that were set forth in this Court’s order denying claimant’s previous motion for assignment of counsel:
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 [1975]), 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 [1999]; 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.

(Malik v State of New York, UID # 2007-038-546, Claim No. 112655, Motion No. M-73209, DeBow, J. [June 27, 2007]). In denying claimant’s first motion for assignment of counsel, the Court was well aware that prosecution of a medical malpractice claim generally requires the presentation of expert evidence, and that claimant, pro se, may encounter certain difficulties in that regard. Nevertheless, the Court does not consider the need for an expert witness in this fairly straight-forward medical malpractice claim a compelling circumstance warranting the assignment of counsel (see e.g. Mejia v State of New York, UID # 2007-015-247, Claim No. 110969, Motion No. M-73769, Collins, J. [Oct. 29, 2007]; Rivera v State of New York, UID # 2006-030-534, Claim No. 111764, Motion No. M-71175, Scuccimarra, J. [May 1, 2006]). Accordingly, it is

ORDERED, that Motion No. M-75186 is DENIED.

September 30, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 112655, filed Aug. 18, 2006;

(2) Verified Answer, filed Sept. 26, 2006;

(3) Notice of Motion for Attorney and Affirmation, dated June 29, 2008.