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 ).
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 ;
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.
(1) Claim No. 116048, filed November 5, 2008;
(2) Order granting application for reduced filing fee, filed November 24,
(3) Verified Answer, filed December 10, 2008;
(4) [Notice of] Motion for the Appointment of Counsel, dated December 22,
(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.