New York State Court of Claims

New York State Court of Claims
WEEMS v. THE STATE OF NEW YORK, # 2010-015-157, Claim No. 115306, Motion No. M-78109

Synopsis

Claimant's motion for reconsideration of his prior motions to compel discovery was denied as no demand for discovery was served. Claimant's motion was also denied to the extent it sought depositions of non-party witnesses and the assignment of counsel.

Case information

UID: 2010-015-157
Claimant(s): KEVIN WEEMS
Claimant short name: WEEMS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115306
Motion number(s): M-78109
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Kevin Weems, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 21, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for reconsideration of several prior motions in which he sought to compel discovery and secure the depositions of certain non-party witnesses (Motion Nos. M-75887;

M-77168; M-77169; M-77488 and M-76948). He also requests the assignment of counsel.

Claimant's prior motions to compel discovery were denied because he failed to first serve a discovery demand. Claimant has now twice been advised that "[a] necessary prerequisite to a motion to compel discovery is the service of a demand" (Weems v State of New York, Claim No. 115306; Motion No. M-77488 [Ct Cl, March 10, 2010], Collins J, unreported; Weems v State of New York, Claim No. 115306; Motion Nos. M-77168, M-77169 [Ct Cl, January 15, 2010], Collins, J, unreported). A motion is not a demand. The claimant is again advised that he should first serve a demand for the production of discovery on the Office of the Attorney General before moving to compel discovery (see CPLR 3120).

Claimant's request for the depositions of non-party witnesses has also been twice denied because the claimant failed to establish that the testimony sought was both material and necessary to the prosecution of his claim (Weems v State of New York, Claim No. 115306, Motion No.

M-75887 [Ct Cl, February 3, 2009], Collins, J, unreported; Weems v State of New York, Claim No. 115306; Motion Nos. M-77168, M-77169 [Ct Cl, January 15, 2010], Collins, J, unreported). Claimant offers nothing in support of the instant motion that would change this determination.

Claimant's request for the assignment of counsel is denied. CPLR 1102 grants the Court discretion to assign an attorney in its order permitting a person to proceed as a poor person. CPLR 1101 requires, inter alia, that an application for poor person status be supported by an affidavit setting forth the amount and sources of the moving party's income and assets and that he or she is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. In support of the instant application, claimant failed to set forth the amount of his income and assets and that he is unable to pay the costs, fees and expenses necessary to prosecute the action.

Moreover, in Matter of Smiley (36 NY2d 433 [1975]) 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 includes situations in which a litigant is faced with grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not view the allegations made here as so compelling as to warrant the assignment of counsel.

Additionally, claimant's failure to serve the county attorney as required by CPLR 1101(c) warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

Claimant's motion is denied.

June 21, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated February 24, 2010;
  2. Affidavit of Kevin Weems sworn to February 24, 2010;
  3. Affirmation of Kent B. Sprotbery dated May 6, 2010.