A claim for damages was filed with the Court on November 14, 2008, together
with two motions. Claimant alleges, among other things, that on November 16,
2007 he was assaulted by a correction officer at the Coxsackie Correctional
Facility. In his first motion, claimant seeks the waiver or reduction of filing
fees and the assignment of counsel. In his second motion, claimant seeks an
award of $1,500.00. Thereafter, on December 12, 2008, defendant filed with the
Court its verified answer and opposition to claimant’s motions. In
opposition to the motions, defendant argues, among other things, that an award
of summary judgment in favor of claimant in the amount of $1,500.00 is premature
pursuant to CPLR 3212 and must be denied.
The Court concludes in the first instance that claimant’s motion for a
waiver or reduction in filing fees must be denied. On December 2, 2008, the
Court (Sise, P.J.) issued an order setting the filing fee at $35.00 pursuant to
CPLR 1101 (f).
Likewise, claimant’s motion for assignment of counsel must also be
denied. It is well settled that “[t]here is no absolute right to
assignment of counsel in civil litigation” (Williams v State of New
York, 21 Misc 3d 1128(A), 1-2 [Ct Cl 2008]; see also Matter of
Smiley, 36 NY2d 433, 438 ). Rather, “[t]he underlying principle
is that when the State or Government proceeds against the individual with risk
of loss of liberty or grievous forfeiture, the right to counsel and due process
of law carries with it the provision of counsel if the individual charged is
unable to provide it for himself” (Matter of Smiley, supra
at 437-438). Here, claimant has demonstrated neither a risk of loss of liberty
or grievous forfeiture, nor has he identified any other compelling circumstances
warranting the assignment of counsel (see Wills v City of Troy,
258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 ; see
also Williams v State of New York, supra [claim seeking money
damages following the alleged “illegal imposition of post-release
supervision does not provide a compelling circumstance warranting assignment of
counsel”]; 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]).
The Court further concludes that claimant’s motion for an order awarding
the sum of $1,500.00 must be denied. Defense counsel aptly points out that CPLR
3212 provides, in relevant part, that “any party may move for summary
judgment in any action, after issue has been joined.” Claimant’s
motion for an award of $1,500.00 was made prior to service and filing of
defendant’s verified answer and must therefore be denied. Moreover,
claimant has not provided the Court with any affirmative proof in support of his
request for an award.
Accordingly, it is hereby
ORDERED that M-75968 is denied; and it is further
ORDERED that M-75969 is denied.