New York State Court of Claims

New York State Court of Claims

HILL v. STATE OF NEW YORK, #2009-039-114, Claim No. 116086, Motion Nos. M-75968, M-75969


Synopsis


Claimant’s motion for a waiver or reduction in filing fees must be denied since the Court (Sise, J.) previously issued an order setting claimant’s filing fee at $35.00 pursuant to CPLR 3212. Claimant’s motion for assignment of counsel is denied. Claimant has not demonstrated a risk of loss of liberty or grievous forfeiture, nor has he identified any other compelling circumstances warranting the assignment of counsel. Claimant’s motion for an order awarding to him the sum of $1,500.00 must also be denied as premature, pursuant to CPLR 3212, and for failure to meet his prima facie burden on the motion by offering sufficient affirmative proof in support of his request for an award.

Case Information

UID:
2009-039-114
Claimant(s):
HADJI S. HILL
Claimant short name:
HILL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116086
Motion number(s):
M-75968, M-75969
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Hadji S. Hill, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joan MatalavageAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 25, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 [1975]). 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 [1999]; 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.


February 25, 2009
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Affidavit in Support of Application Pursuant to CPLR 1101 (f) by Hadji S. Hill, sworn to on November 6, 2008;
  1. Notice of Motion dated November 6, 2008;
  1. Affidavit in Opposition by Joan Matalavage, AAG, dated December 12, 2008 with exhibit; and
  1. Correspondence from Hadji S. Hill to State of New York Court of Claims.