New York State Court of Claims

New York State Court of Claims

MOREHOUSE v. STATE OF NEW YORK, #2009-038-572, Claim No. 116598, Motion Nos. M-76812, M-76936


Claimant’s motion for appointment of counsel denied, as claim in the nature of bailment with certain monetary damages does not present the type of claim that warrants appointment of counsel. Motion to produce claimant for hearing on motion(s) denied as motions are decided on submitted papers without hearing. Motion to compel discovery denied as premature, as claimant did not serve discovery demands prior to making motion.

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):
M-76812, M-76936
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:
October 22, 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 eyeglasses that were allegedly lost while in the possession of defendant, as well as for the alleged consequential personal injury sustained in the nature of eye strain. In two motions (Motion Nos. M-76812 and M-76936), claimant seeks an order directing his production at all hearings on this claim, for the appointment of counsel to represent him in this claim, and for an order compelling defendant to respond to his discovery demand.[1] Defendant opposes all of the relief sought by claimant. Turning first to claimant’s request for assignment of counsel under both motions, the papers submitted by claimant do not demonstrate that any such motions were served upon the county attorney in the county where the action is triable (see CPLR 1101 [c]), an omission that is fatal to his applications 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 applications for assigned counsel defective and his request for such relief is denied on that ground.

Even if the motions for assignment of counsel 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 papers do not demonstrate that he is facing a loss of liberty or grievous forfeiture, and this claim sounding primarily in the nature of negligent bailment 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]).

Turning to claimant’s requests for the issuance of orders to produce him for appearances before this Court under both motions, such requests will be denied. Motions, including the instant motions, are considered by the Court on written submissions only, except in extenuating circumstances which are not present on the instant motions. Should claimant’s appearance outside of the correctional facility be necessary for a proceeding on this claim, an order to produce will be issued at that time.

Claimant moves under Motion No. M-76812 for production of materials for discovery and inspection, and his supporting affidavit recites enumerated materials that he requests the Court to direct defendant to produce. Defendant opposes the motion on the ground that there is not an outstanding discovery demand to which defendant has failed to respond. A motion to compel disclosure is authorized “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or [discovery] order” (CPLR 3124). Claimant’s motion does not demonstrate that any such prerequisite event has occurred, and indeed, this pro se claimant candidly concedes in his response papers that he did not serve a discovery demand prior to making this motion.[2] Thus, the motion to compel disclosure must be denied as premature (see Salaam v State of New York, UID # 2009-038-565, Claim No. 105538, Motion No. M-77075, DeBow, J. [Sept. 17, 2009]).

Finally, to the extent claimant requests the Court’s intervention with regard to his access to materials in the facility law library, such request is denied because the Court lacks jurisdiction to compel the Department of Correctional Services to provide claimant with law library services.

In sum, it is

ORDERED, that Motion Nos. M-76812 and M-76936 are DENIED in all respects.

October 22, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 116598, filed March 24, 2009;

(2) Order granting application for reduced filing fee, filed April 9, 2009;

(3) Verified Answer, filed May 5, 2009;

(4) Motion No. M-76812 (Motion for Discovery), filed June 15, 2009, with request for

Order to Produce and Assignment of Counsel;

(5) Affirmation of Paul F. Cagino, AAG, dated June 23, 2009;

(6) Correspondence in reply of Scott Morehouse, filed July 13, 2009;

(7) Motion No. M-76936 (Motion for Order to Produce and Assignment of Counsel),

filed July 13, 2009;

(8) Affidavit of Scott Morehouse, sworn to July 1, 2009, with exhibits;

(9) Defendant’s Response to Request for Discovery, filed August 28, 2009;

(10) Claimant’s Demand for Discovery, filed August 31, 2009.

[1]. It is noted that claimant’s request for a reduced filing fee was granted by order of Hon. Richard E. Sise, Presiding Judge of the Court of Claims, on April 9, 2009.
[2]. As part of his motion No. M-76936, claimant submitted a “Request for Discovery.” Additionally, on August 31, 2009, claimant filed a Demand for Discovery dated August 27, 2009. On August 28, 2009, defendant filed a discovery response dated August 26, 2009.