Claimant, an individual incarcerated in a State correctional facility, has
filed two claims seeking damages for injuries claimed to have been sustained
when he was allegedly assaulted by correction officers on November 10,
Claimant has filed two motions. In
Motion No. M-75169, he seeks an order compelling defendant to produce documents;
defendant opposes the motion on the ground that it is premature. In Motion No.
M-75296, claimant requests the Court to assign an attorney to prosecute these
; defendant has not submitted papers on
that motion. The motion to compel discovery will be denied as premature.
Claimant’s affidavit recites the documents he seeks, but his submission
does not demonstrate that he has made a prior discovery demand with which
defendant has not complied (see
CPLR 3124; Pettus v State of New
, UID # 2007-044-581, Claim No. 112504, Motion No. M-73624, Schaewe, J.
[Nov. 7, 2007]). Indeed, it appears that subsequent to the filing and service
of claimant’s motion, defendant has, in addition to filing opposition to
the motion, responded to claimant’s motion as if it were a discovery
King Correspondence, July 21, 2008), and that the parties are
endeavoring to accomplish discovery (see
Undated Williams Correspondence,
received Aug. 4, 2008; Correspondence of Darren Williams, dated August 24, 2008,
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, 438 ). 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. at 438; 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 the claim seeking money damages from an
alleged assault does not provide a compelling circumstance warranting assignment
of counsel (see Pettus v State of New York, UID # 2008-044-549,
Claim No. 112504, Motion No. M-74654, Schaewe, J. [June 12, 2008]; Pitt v
State of New York, UID # 2007-009-029, Motion No. M-73213, Midey, J. [Sept.
27, 2007]), notwithstanding claimant’s unsworn allegations of
“misconduct and unfairness” by DOCS employees (see
“Affidavit” of Darren Williams, dated July 21, 2008, ¶¶
4-6). Accordingly, it is
ORDERED, that Motion No. M-75169 is DENIED, and it is further
ORDERED, that Motion No. M-75296 is DENIED.
(1) Claim No. 114391, filed October 23, 2007;
(2) Verified Answer, filed November 30, 2007;
(3) Claim No. 114392, filed October 23, 2007;
(4) Verified Answer, filed December 3, 2007;
(5) Notice of Motion for Demand for Discovery and Inspection, dated June 23,
(6) Affidavit of Darren Williams, sworn to June 23, 2008, in Support of Motion
for Demand for
Discovery and Inspection;
(7) Correspondence of Glenn C. King, AAG, dated July 21, 2008;
(8) Undated Correspondence of Darren Williams;
(9) Affirmation in Response to Claimant’s Motion of Glenn C. King, AAG,
dated July 31, 2008,
with Exhibit A;
(10) Notice of Motion for Poor Person Relief, dated July 21, 2008;
(11) Unsworn Affidavit of Darren Williams, dated July 21, 2008;
(12) Affidavit of Service, sworn to July 21, 2008;
(13) Correspondence of Darren Williams, dated August 24, 2008, with