New York State Court of Claims

New York State Court of Claims

KEY v. THE STATE OF NEW YORK, #2009-038-542, Claim No. 116604, Motion No. M-76523


Claimant’s motion for appointment of counsel denied. The claim for monetary damages for damage to property does 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: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual currently incarcerated in a State correctional facility, filed the instant claim seeking compensation for property that was allegedly intentionally destroyed by correction officers. Claimant moves for appointment of counsel to represent him in this claim.[1] 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]).

Claimant’s motion does not demonstrate that he is facing a loss of liberty or grievous forfeiture, and this claim seeking compensation for property loss 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]). Accordingly, it is

ORDERED, that Motion No. M-76523 is DENIED.

May 12, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

((1) Claim No. 116604, filed March 25, 2009;

(2) Order granting application for reduced filing fee, filed April 8, 2009;

(3) Verified Answer, filed April 16, 2009;

(4) Notice of Motion to Proceed as Poor Person Pursuant to CPLR 1101(f),

dated February 25, 2009;

(5) Affidavit of Service, sworn to March 20, 2009.

[1]. That part of claimant’s motion seeking reduction of filing fees has already been granted by Order of Hon. Richard E. Sise (April 8, 2009).