New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-044-501, Claim No. 112759, Motion No. M-75672


Inmate claimant’s motion for assignment of counsel is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 13, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that being on a restricted diet pursuant to a disciplinary sentence made him sick to his stomach. Defendant State of New York (defendant) answered. This Court previously denied both defendant’s motion for summary judgment, and Claimant’s cross motion for summary judgment. Claimant now moves for assignment of counsel. Defendant opposes the motion.

Claimant states that until the Court rendered its Decision and Order dated August 1, 2008, he was unaware of the precise ingredients of the “diet loaf.”[1] Claimant asserts because the “diet loaf” contains milk, and he is lactose intolerant – which is apparently documented in his ambulatory health records – he should not have been placed on a restricted diet. Claimant contends that an attorney should be assigned to represent him so that Elmira Correctional Facility physician J. Alves can be effectively cross-examined.

Defendant opposes the motion on the grounds, among others, that claimant has not submitted certified records showing the amount of money in his inmate account, nor is this a complex matter warranting an exercise of the Court’s discretion to appoint an attorney. Defendant further notes that claimant has failed to serve the appropriate County Attorney with the motion papers, as required under CPLR 1101 (c).

Claimant seeks the assignment of an attorney who would apparently serve without compensation. As defendant correctly notes, CPLR 1101 (c) requires that “if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the [C]ounty [A]ttorney in the county in which the action is triable.” Notice to the County Attorney is required because certain costs such as filing or transcription fees may be a county charge (see CPLR 1102) and the failure to comply with the notice requirement renders an application defective (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [1979]). Claimant has failed to file proof of service of his motion for poor person status on the appropriate County Attorney’s office and his motion for relief may be denied solely on that basis.

Moreover, there is no constitutional or statutory authority for the assignment or compensation of counsel under these circumstances (see Matter of Smiley, 36 NY2d 433 [1975]). Rather, the assignment of counsel in civil matters is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion No. M-69991 [UID # 2005-028-534]). The allegations made in this claim are for personal injuries caused by the facility health care staff ’s alleged medical malpractice or medical negligence in medically clearing claimant for imposition of the disciplinary diet in spite of knowledge that he was allergic to some of the ingredients the diet may have contained. Claimant’s allegations are clearly of the nature that would typically be handled by an attorney on a contingent fee basis. The Court finds that this claim does not warrant the exercise of its discretion to assign counsel (see Matter of Smiley, supra).

Claimant’s motion for assignment of counsel is denied.

January 13, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on October 9, 2008; Affidavit of Johnathan Johnson sworn to on October 2, 2008, and attached Exhibit A.

2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated November 10, 2008.

Filed papers: Claim filed on September 14, 2006; Verified Answer filed on September 22, 2006.

[1]. The Court, citing Matter of Trammell v Coombe (170 Misc 2d 471, 475 [1996]), specifically stated that “[a]lthough neither party [had] provided the Court with the precise ingredients of the ‘diet loaf,’ at one time, the ‘Nutriloaf’ used in the State’s correctional facilities consisted of whole wheat flour, sugar, carrots, potatoes, whole and packaged milk, and yeast (Johnson v State of New York, Ct Cl, Aug. 1, 2008, Schaewe, J., Claim No. 112759, Motion No. M-74851, Cross Motion No. CM-74898 [UID # 2008-044-567]). At this time, there is clearly no evidence that the “diet loaf” consumed by claimant in fact contained these ingredients.