New York State Court of Claims

New York State Court of Claims
ALSTON v. THE STATE OF NEW YORK, # 2010-033-398, Claim No. 107860, Motion No. M-78507

Synopsis

Case information

UID: 2010-033-398
Claimant(s): JESSE ALSTON
Claimant short name: ALSTON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107860
Motion number(s): M-78507
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Jesse Alston, Pro Se
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 24, 2010
City: Hauppauge
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is a claim for injuries to Jesse Alston (hereinafter "claimant") due to the alleged medical malpractice of the defendant. Claimant injured his ankle, leg and knee while playing a game of football at Eastern Correctional Facility, Napanoch, New York, on May 18, 2002. Claimant's allegations of medical malpractice arise from the care he received after the incident. An x-ray taken immediately after the incident showed no evidence of fracture in claimant's ankle or leg. Approximately five days later, claimant received another x-ray and a fracture was found in his leg and ankle.

Claimant is seeking the assignment of counsel who would serve without compensation. The appointment of counsel in a case such as this, where there is no threat that claimant is about to be deprived of a liberty or suffer a grievous forfeiture, is neither statutorily nor constitutionally required (Harris v State of New York, Ct Cl, Benza, J., Claim No. 80949, M-42854; Johnson v State of New York, Ct Cl, Margolis, J., M-40809). Furthermore, this claim is not of sufficient complexity and does not involve such fundamental rights that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see Matter of Smiley, 36 NY2d 433; Jacox v Jacox, 43 AD2d 716). Typically, in matters such as this, counsel's fee is paid by receiving a percentage of what is ultimately recovered.

Based upon the foregoing, claimant's motion to have counsel assigned is denied.

September 24, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims