New York State Court of Claims

New York State Court of Claims

SPIRLES v. THE STATE OF NEW YORK, #2008-041-022, Claim No. 115243, Motion No. M-75023


Synopsis


Claimant’s motion for appointment of counsel in negligence case is denied.

Case Information

UID:
2008-041-022
Claimant(s):
WILLIE SPIRLES
Claimant short name:
SPIRLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115243
Motion number(s):
M-75023
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
WILLIE SPIRLESPro Se
Defendant’s attorney:
None
Third-party defendant’s attorney:

Signature date:
July 8, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an order permitting him to proceed as a poor person and for appointment of counsel to represent him in this negligence action. Claimant’s motion is denied.

Assuming claimant seeks relief pursuant to CPLR § 1102(a), the “application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated” (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR § 1101 [c]). The application has not been served on “the county attorney in the county in which the action is triable” (CPLR § 1101 [c]).

In addition, the claimant’s affidavit fails to contain the information required by CPLR § 1101 (a), necessary for the relief sought under CPLR § 1102 (a). Claimant has failed to either provide a copy of the claim or to set sufficient facts in his affidavit so that the merits of the claim could be determined.

Even had the claimant properly served the motion and included the required information, the application would nevertheless be denied.

While it is “clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case” (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]; Matter of Smiley, 36 NY2d 433, 438 [1975]). A proper case may include proceedings where “there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right” (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).

This is not a proper case for appointment of counsel since claimant apparently seeks money damages for personal injuries allegedly caused by defendant’s negligence. Such cases are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis. Claimant has not shown that he has made any attempt to retain an attorney on a contingent fee basis.

Claimant’s motion for an order permitting him to proceed as a poor person and for appointment of counsel is denied.


July 8, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion to Proceed as a Poor Person, filed May 12, 2008;
  2. Claimant’s Affidavit, sworn to May 7, 2008 and attached exhibits.