New York State Court of Claims

New York State Court of Claims

KING v. THE STATE OF NEW YORK, #2009-041-048, Claim No. 114076, Motion No. M-77457


Synopsis


Claimant’s motion for appointment of counsel in medical malpractice action is denied.

Case Information

UID:
2009-041-048
Claimant(s):
WALTER KING
Claimant short name:
KING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114076
Motion number(s):
M-77457
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
WALTER KINGPro Se
Defendant’s attorney:
None
Third-party defendant’s attorney:

Signature date:
December 9, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an order appointing counsel to represent him without payment of any fee in this action sounding in medical malpractice and/or negligence. Claimant’s motion is denied.

While it is “clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case” (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where “there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right” (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).

In a civil action “there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court” Matter of Smiley, 36 NY2d 433, 438 [1975]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).

This is not a proper case for appointment of counsel since claimant apparently seeks money damages for personal injuries allegedly caused by defendant’s medical malpractice and/or negligence. Such cases are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis. Claimant has not shown that he has made any attempt to retain an attorney on a contingent fee basis. There is no “danger of grievous forfeiture or the deprivation of a fundamental liberty right” (148 Misc 2d at 903).

Claimant’s motion for an order appointing counsel to represent him without payment of any fee in this personal injury action is denied.


December 9, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Application for Assigned Counsel, filed November 13, 2009;
  2. Claimant’s Affidavit, sworn to November 9, 2009.