New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2008-038-617, Claim No. 115638, Motion No. M-75425


Synopsis


Application for assignment of counsel denied in bailment claim.

Case Information

UID:
2008-038-617
Claimant(s):
SINCERE McKINLEY
Claimant short name:
McKINLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115638
Motion number(s):
M-75425
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
SINCERE McKINLEY, 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, 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 Correctional Facility.[1] 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’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.


October 2, 2008
Albany, New York

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


Papers considered
:


(1) Claim, filed August 5, 2008;

(2) Affidavit in Support of Application Pursuant to CPLR 1101 (f), sworn to July 31, 2008;

(3) Affidavit of Service, sworn to July 31, 2008.



[1]. By Order of Hon. Thomas J. McNamara, filed August 20, 2008, claimant’s application for reduction of the filing fee was granted. That part of the application seeking assignment of counsel now comes before the Court.