New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2008-038-619, Claim No. 114391


114392, Motion No. M-75169


M-75296


Synopsis


Claimant’s motion for discovery denied as premature. No discovery demand had been made. Claimant’s motion for assignment of counsel denied. No service on County Attorney, and no impending loss of liberty or grievous forfeiture in claim for damages from alleged CO assault

Case Information

UID:
2008-038-619
Claimant(s):
DARREN 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):
114391114392
Motion number(s):
M-75169M-75296
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
DARREN WILLIAMS, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

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, 2006.[1] 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 claims[2]; 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 York, 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 demand (see 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, with attachments).

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 [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. 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 [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 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.


October 24, 2008
Albany, New York

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


Papers considered
:


(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, 2008;

(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 attachments.



[1]. Claim No. 114391 appears to assert a cause of action sounding in intentional tort, while Claim No. 114392 asserts a cause of action sounding in negligent training of employees.
[2]. Claimant’s applications for reduced filing fees for these claims were granted by orders of Hon. Richard E. Sise, dated November 13, 2007.