New York State Court of Claims

New York State Court of Claims

LAINFIESTA v. THE STATE OF NEW YORK, #2009-038-536, Claim No. 116048, Motion No. M-76137


Claimant’s motion for appointment of counsel denied. Claimant’s allegations of intentional torts by DOCS personnel and his claim for monetary damages do not present the type of claim that warrants appointment of counsel.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 14, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 intentional torts of correction officers. In particular, the claim alleges, inter alia, that he has been served tainted food on numerous occasions, that correction officers utilize “inmate agents” to incite claimant to punishable misbehavior, and that his complaints about this alleged misconduct have gone unaddressed by administrators of the Department of Correctional Services (DOCS). Claimant moves for appointment of counsel to represent him in this claim. While the papers submitted by claimant demonstrate that the motion for assignment of counsel was served upon the Attorney General, they do not demonstrate that the 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 at public expense. 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 the movant is not facing 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]).

Although claimant asserts that he is being goaded into behavior “which can easily result in many years” of restrictive confinement, hospitalization and even death (see “Affirmation” of Shawn I. Lainfiesta, dated Dec. 22, 2008, at 3-4), the motion does not demonstrate that claimant is facing a future loss of liberty or grievous forfeiture which requires the intervention and representation of counsel. Rather, the claim seeks monetary damages for injuries allegedly sustained in the past as the result of the intentional torts of DOCS employees and thus, 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]). This claim for money damages is the type of claim that would typically be handled by an attorney on a contingent fee basis (see id.; Pitt v State of New York, UID # 2007-009-029, Motion No. M-73213, Midey, J. [Sept. 27, 2007]). Accordingly, it is

ORDERED, that Motion No. M-76137 is DENIED.

April 14, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 116048, filed November 5, 2008;

(2) Order granting application for reduced filing fee, filed November 24, 2008;

(3) Verified Answer, filed December 10, 2008;

(4) [Notice of] Motion for the Appointment of Counsel, dated December 22, 2008;

(5) “Affirmation” in Support of Motion of Shawn I. Lainfiesta, dated December 22, 2008;

(6) “Affirmation” of Service [upon NYS Assistant Attorney General], dated December 28, 2008.