New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2009-042-510, Claim No. 109231-A


110036, Motion No. M-76410


Synopsis


This motion is brought on by claimant for an order granting request to file this claim and granting claimant’s request for assignment of counsel. Defendant opposes the motion. The court denies this motion as moot as a claim has already been filed under both claim number 109231-A and claim number 110036.

Case Information

UID:
2009-042-510
Claimant(s):
FRED BROWN AKA J. MALLARD
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109231-A110036
Motion number(s):
M-76410
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
FRED BROWN AKA J. MALLARD, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 9, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion:

  1. Notice of Motion, filed March 19, 2009
  2. Affidavit of Service, appended to Notice of Motion, sworn to March 16, 2009
  3. "Reply" affirmation of Joel L. Marmelstein, Esq., dated April 13, 2009
  4. Exhibits A - E, annexed to the reply affirmation

On March 19, 2009 the claimant, Fred Brown, acting pro se, filed a “Notice of Motion to File Late Claim”, which also seeks assignment of counsel. Unfortunately, nothing other than an affidavit of service of a “Notice of Intent to File Claim” is submitted to the court in support of this motion. There is neither a supporting affidavit nor a proposed claim. The notice of motion also refers to two separate claim numbers, claim number 109231-A and claim number 110036.

The attorney general opposes the motion.
Claim Number 109231-A
Claim number 109231-A began as a motion for permission to late file, which motion was decided by a decision and order dated March 3, 2004. That decision granted, in part, claimant’s motion for permission to late file, and the claim was subsequently filed. Thus, the current motion, insofar as it applies to claim number 109231-A is denied as moot.

Assignment of counsel in civil matters is discretionary.
While this Court may, in its discretion, assign counsel to a claimant seeking to prosecute a private action (see id.; Wilson v State of New York, 101 Misc 2d 924, 926 [Ct Cl 1979]), such relief will not generally be granted if there is not 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, #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [Oct. 20, 2006]; Bayron v State of New York, #2006-032-075, Claim No. 112389, Motion No. M-71902, Hard, J. [Sept. 1, 2006]). The instant claim, alleging negligence or medical malpractice that caused personal injury, does not present an issue that moves the Court to exercise its discretion to assign counsel.

(Malik v State of New York, UID No. 2008-038-614, Claim No. 112655, Motion No. M-75186, DeBow, J. [September 30, 2008].) The present case is also one for negligence and/or medical malpractice.

This court declines to assign counsel in this claim for money damages arising out of alleged malpractice. Private counsel typically take on such cases, when meritorious, even for indigent litigants, on a contingency basis. Claimant is not precluded from obtaining counsel, but this decision does preclude public financing of counsel for his private action.
Claim Number 110036
Again, there is already a pending claim. Thus the motion is moot with regard to claim number 110036. As the defense points out, the motion also lacks the requisite supporting papers (CPLR Rule 2214 [a]). Furthermore, the notice of motion fails to set forth the grounds for the motion, as required by CPLR Rule 2214 (a).

The underlying claim, previously filed on October 29, 2004, seeks damages of $349.25 for property which claimant alleges was damaged or lost by the defendant.

Assignment of counsel in civil matters is discretionary and inappropriate under the circumstances of this case. As the court in Jabbar v State of New York (UID No. 2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [October 20, 2006]) stated, citing Matter of Smiley, 36 NY2d 433:
[i]n this action, claimant seeks to recover for damaged personal property. There is no constitutional or statutory authority for the assignment or compensation of counsel under the present circumstances and this Court will not exercise its discretion to assign counsel in this matter.

Assignment of counsel is denied on this claim.


Claimant’s motion is, in all respects, denied.


June 9, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims