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