New York State Court of Claims

New York State Court of Claims

HALL v. THE STATE OF NEW YORK, #2009-038-535, Claim No. 113723, Motion No. M-76130


Synopsis


Claimant’s motion for appointment of counsel denied in medical malpractice claim.

Case Information

UID:
2009-038-535
Claimant(s):
JOSEPH HALL
Claimant short name:
HALL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113723
Motion number(s):
M-76130
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JOSEPH HALL, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual currently incarcerated in a State correctional facility, has filed the instant claim seeking compensation for injuries allegedly sustained as a result of the alleged medical negligence or malpractice of the staff at Upstate Correctional Facility. Claimant makes this motion seeking assignment of counsel to represent him in the prosecution of his claim. It is noted that claimant’s prior application for the same relief was denied on the ground that this is not the type of claim that warrants appointment of counsel, and that the motion did not “present an issue that would move the Court to exercise its discretion to assign counsel” at public expense (see Hall v State of New York, Claim No. 113723, Motion No. M-73525, DeBow, J. [filed Aug. 20, 2007]). While the papers submitted by claimant demonstrate that the instant motion for assignment of counsel was served upon the Attorney General, claimant again fails to demonstrate that the motion was served upon the county attorney in the county where the action is triable (see CPLR 1101 [c]). This omission is fatal to his application for assigned counsel (see id.; see also 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 additional facts that would warrant assignment of counsel at public expense. Claimant’s contentions that “fellow prisoner assistants”[1] are no longer willing to assist him with the prosecution of this claim is not a compelling reason to assign counsel. Nor is the Court moved by claimant’s assertions that he has unsuccessfully attempted to obtain representation by counsel. The documents submitted in support of the motion demonstrate that claimant has reached out to a private lawyer and certain non-profit agencies who he thought would provide him with counsel, to no avail. However, the failure to obtain legal representation does not serve as a basis to warrant the assignment of counsel at public expense. Accordingly, it is

ORDERED, that Motion No. M-76130 is DENIED.

April 14, 2009
Albany, New York

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


Papers considered
:


(1) Claim No. 113723, filed May 18, 2007;

(2) Order granting application for reduced filing fee, filed June 5, 2007;

(3) Verified Answer, filed June 1, 2007;

(4) Motion for Appointment of Counsel, sworn to December 26, 2008, with Exhibits;

(5) Affidavit of Service of Joseph Hall, sworn to December 26, 2008;

(6) Affirmation in Opposition of Belinda A. Wagner, AAG, dated January 6, 2009;

(7) Correspondence of Joseph Hall, dated January 27, 2009;

(8) Decision and Order, Hall v State of New York, Claim No. 113723, Motion No. M-73525, DeBow, J., filed August 20, 2007.


[1]. In context, the Court interprets the phrase “fellow prisoner assistants” to mean other inmates who are familiar with litigation.