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.
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
, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New
, 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 ). 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,
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
candidly concedes in his response papers that he did not serve a discovery
demand prior to making this motion.
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.
(1) Claim No. 116598, filed March 24, 2009;
(2) Order granting application for reduced filing fee, filed April 9,
(3) Verified Answer, filed May 5, 2009;
(4) Motion No. M-76812 (Motion for Discovery), filed June 15, 2009, with request
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
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,
(10) Claimant’s Demand for Discovery, filed August 31, 2009.