New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2008-038-616, Claim No. 115397, Motion No. M-75346


Synopsis


Application for assignment of counsel denied. Claim seeking damages for past imposition of illegal post-release supervision does not state a loss of liberty or grievous forfeiture or other compelling circumstances warranting assignment of counsel

Case Information

UID:
2008-038-616
Claimant(s):
DUANE K. WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115397
Motion number(s):
M-75346
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
DUANE K. WILLIAMS, Pro se
Defendant’s attorney:
No appearance
Third-party defendant’s attorney:

Signature date:
October 2, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant requests assignment of counsel to prosecute this claim for claimed damages flowing from defendant’s allegedly unlawful imposition of a period of post-release supervision following claimant’s release from incarceration.[1] Documents filed with the Court indicate that claimant was convicted of various crimes in March 2000, that he was sentenced to incarceration for a period of seven years, and that the Department of Correctional Services imposed a five-year period of post-release supervision on claimant. Claimant asserts various emotional injuries and loss of relationships owing to the allegedly unlawful restrictions on his freedom. 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 application for assigned counsel (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. There is no absolute right to assignment of counsel in civil litigation (see Matter of Smiley, 36 NY2d 433, 437 [1975]). Assignment of counsel is generally warranted only when an individual is facing a “loss of liberty or grievous forfeiture” (id. at 437). 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, UID #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [Oct. 20, 2006]; Bayron v State of New York, UID #2006-032-075, Claim No. 112389, Motion No. M-71902, Hard, J. [Sept. 1, 2006]).

Claimant does not assert that he is facing a loss of liberty or grievous forfeiture; indeed, his papers demonstrate that he has already obtained relief from the wrongful imposition of post-release supervision by way of a judgment of Supreme Court on an Article 78 petition in the nature of prohibition (see Matter of Williams v Brian Fischer and Department of Correctional Services, Albany County Index No. 9113-07, Zwack, J. [dec. Feb. 27, 2008] [Claimant’s Exhibit]). The present action for compensation for injuries allegedly sustained as a result of the illegal imposition of post-release supervision does not provide a compelling circumstance warranting assignment of counsel (see Pettus v State of New York, UID #2008-015-042, Claim No. 113705, Motion No. M-74651, Collins, J., [May 26, 2008]; Mitchell v State of New York, UID #2006-009-025, Claim No. 111757, Motion No. M-71167, Midey, J. [May 4, 2006]). Accordingly, it is

ORDERED, that Motion No. M-75346 is DENIED.

October 2, 2008
Albany, New York

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


Papers considered
:

(1) “Verified Petition,” filed June 17, 2008;

(2) Verified Answer, filed July 10, 2008;

(3) Affidavit in Support of Application Pursuant to CPLR 1101 (f), sworn to June 10, 2008;

(4) Affidavit of Service, sworn to June 10, 2008.



[1]. By Order of Hon. Thomas J. McNamara, filed June 24, 2008, claimant’s application for reduction of the filing fee was denied. That part of the application seeking assignment of counsel now comes before the Court.