Motion for the assignment of counsel and to take trial testimony by telephone was denied.
|Claimant short name:||HOLMES|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77863, M-77864|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Arthur Holmes, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 20, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for the assignment of counsel (Motion No. M-77863) and to take the trial testimony of certain witnesses by telephone (Motion No.
Claimant seeks damages for negligent infliction of emotional distress arising from defendant's alleged failure to allow him to attend the funeral of his father. After having approved claimant's request to attend the funeral, claimant was transported from Great Meadow Correctional Facility to a funeral home in Brooklyn where he arrived at 10:00 a.m. The funeral did not start until 1:00 p.m., however, and claimant alleges he was required to leave to return to the facility at 11:00 a.m. As a result, claimant alleges he was unable to grieve with family members at the funeral.
Addressing first claimant's request for the assignment of counsel, CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 ) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding, the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel has been interpreted to include a litigant's grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 , lv dismissed 93 NY2d 1000 ; Morgenthau v Garcia, 148 Misc 2d 900, 903 ). No such circumstances exist here. As a result, claimant's motion for the assignment of counsel is denied.
To the extent claimant seeks to take the testimony of witnesses by telephone, no such procedure exists. Moreover, the proposed testimony of claimant's family members and the Funeral Director regarding the denial of claimant's request to "grieve, and be with his family" can be established through the claimant's testimony alone (claimant's unsworn affidavit submitted in support of Motion No. M-77864, p. 2). Aside from confirmation of the claimant's allegation that he was not allowed to attend the funeral and grieve with his family, nothing in the proposed testimony of the witnesses tends to establish a claim for negligent infliction of emotional distress (see generally Johnson v State of New York, 37 NY2d 378, 381-382 ; Moore v Melesky, 14 AD3d 757 ; Tatta v State of New York, 20 AD3d 825 , lv denied 5 NY3d 716 ; Howard v State of New York, Ct Cl, March 11, 2002 [UID # 2002-015-231] Collins, J, unreported; see also 9 NYCRR § 7051.9 [a] and [c]).
Based on the foregoing, claimant's motions for the assignment of counsel (Motion No.
M-77863) and to take the trial testimony of certain witnesses by telephone (Motion No. M-77864) are denied.
April 20, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-77863
Motion No. M-77864
3. Unsworn "Opposition" of Arthur Holmes dated March 12, 2010;
4 Claim filed May 5, 2008.