New York State Court of Claims

New York State Court of Claims

PARTEE v. THE STATE OF NEW YORK, #2009-038-570, Claim No. 117058, Motion No. M-76962


Claimant’s motion for appointment of counsel denied.

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: No appearance
Third-party defendant’s attorney:

Signature date:
October 19, 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 injuries allegedly sustained as a result of the alleged failure of the Division of Parole to decide his appeal from a denial of parole release. Claimant moves for appointment of counsel to represent him in this claim.[1] The papers submitted by claimant do not demonstrate that his 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. Rather, the claim seeks compensation for past alleged wrongs that are characterized in the nature of incidents of ministerial neglect and State constitutional violations, which do not provide a compelling circumstance warranting assignment of counsel (see e.g. Pettus v State of New York, UID # 2007-015-242, Claim No. 113867, Motion Nos. M-73704, M-73727, Collins, J. [Oct. 18, 2007]). Accordingly, it is

ORDERED, that Motion No. M-76962 is DENIED.

October 19, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 117058, filed June 29, 2009;

(2) Order granting application for reduced filing fee, filed July 16, 2009;

(3) Verified Answer, filed July 29, 2009;

(4) Affidavit in Support of Application Pursuant to CPLR 1101(f), sworn to June 16, 2008 [sic];

(5) Affidavit of Service, sworn to June 16, 2009.

[1]. That part of claimant’s motion seeking a reduced filing fee was granted by Order of Hon. Richard E. Sise, Presiding Judge of the Court of Claims, on July 16, 2009.