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.
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
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. 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.
(1) Claim No. 117058, filed June 29, 2009;
(2) Order granting application for reduced filing fee, filed July 16,
(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.