Claimant, an individual currently incarcerated in a State correctional
facility, filed the instant claim seeking compensation for property that was
allegedly erroneously disposed of by defendant. Claimant moves for appointment
of counsel to represent him in this claim.
papers submitted by claimant do not demonstrate that the motion for assignment
of counsel was served upon the county attorney in the county where the action is
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]).
Claimant’s motion does not demonstrate that he is facing a loss of
liberty or grievous forfeiture, and this claim seeking compensation for
destroyed property does not provide a compelling circumstance warranting
assignment of counsel (see McKinley v State of New York, UID #
2008-038-617, Claim No. 115638, Motion No. M-75425, DeBow, J. [Oct. 2, 2008];
Jabbar v State of New York, supra; Brown v State of New
York, UID # 2006-009-010, Claim No. 110036, Motion No. M-71024, Midey, J.
[Feb. 16, 2006]). The assertion that claimant’s current placement in a
State facility has deprived him of access to a law library does not provide an
additional reason to assign counsel at public expense for a civil recovery of
this nature. Accordingly, it is
ORDERED, that Motion No. M-76519 is DENIED.
(1) Claim No. 116176, filed December 8, 2008;
(2) Order granting application for reduced filing fee, filed December 23,
(3) Verified Answer, filed December 17, 2008;
(4) Correspondence of John Peana, dated March 26, 2009;
(5) Affidavit in Support of Application pursuant to NYCPLR 1102, sworn to March