Claimant, an individual incarcerated in a State correctional facility, requests
assignment of counsel to assist in the prosecution of this claim, which is in
the nature of a bailment as it seeks compensation for personal items allegedly
lost concomitant to his transfer from Upstate Correctional Facility to Clinton
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 ). 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’s motion does not demonstrate that he is facing a loss of
liberty or grievous forfeiture, and this claim sounding in bailment does not
provide a compelling circumstance warranting assignment of counsel (see
Jabbar v State of New York, UID # 2006-044-504, Claim No. 112376, Motion
No. M-72082, Schaewe, J. [Oct. 20, 2006]; Brown v State of New York, UID
# 2006-009-010, Claim No. 110036, Motion No. M-71024, Midey, J. [Feb. 16, 2006];
Randolph v State of New York, UID # 2004-030-574, Claim No. 109465,
Motion No. M-68646, Scuccimarra, J. [Sept. 13, 2004]). Accordingly, it is
ORDERED, that Motion No. M-75425 is DENIED.
(1) Claim, filed August 5, 2008;
(2) Affidavit in Support of Application Pursuant to CPLR 1101 (f), sworn to July
(3) Affidavit of Service, sworn to July 31, 2008.