Opinion
# 2018-053-557 Claim No. 131417 Motion No. M-92650
10-17-2018
GREG HUZINEC v. THE STATE OF NEW YORK
GREG HUZINEC, Pro Se HON. BARBARA D. UNDERWOOD New York State Attorney General No Appearance
Synopsis
Claimant, an inmate proceeding pro se, brings a motion for permission to proceed as a poor person and for the assignment of counsel. The Court denies claimant's motion.
Case information
| UID: | 2018-053-557 |
| Claimant(s): | GREG HUZINEC |
| Claimant short name: | HUZINEC |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131417 |
| Motion number(s): | M-92650 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | GREG HUZINEC, Pro Se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | October 17, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Greg Huzinec, an inmate proceeding pro se, seeks by claim no. 131417 to recover damages for loss of personal property which allegedly occurred on February 6, 2018 at Collins Correctional Facility (Collins) where he was incarcerated. Attached to the claim as filed is claimant's motion no. M-92650. Claimant brings this motion for permission to proceed as a poor person and for the assignment of counsel. Defendant has failed to appear or oppose the motion, raising a question as to whether the State was served with a copy of the claim.
In claimant's notice of intention to file a claim, which is attached to the claim as filed, claimant alleges that he was assaulted by correction officers on February 6, 2018 at Collins as he was being escorted to the special housing unit (SHU).
A motion to proceed as a poor person pursuant to CPLR § 1101 and a request for the assignment of counsel pursuant to CPLR § 1102 (a) must be served upon the attorney for the county in which the matter is triable (CPLR § 1101 [c]). The claimant does not include with his motion an affidavit of service indicating that this motion was served on the appropriate county attorney. As a result, claimant's motion is defective and must be denied on this ground (Sebastiano v. State of New York, 92 AD2d 966 [3d Dept 1983]).
In the event that claimant had complied with CPLR § 1101 (c) by serving the appropriate county attorney, his motion would still have to be denied. By order filed June 7, 2018, Acting Presiding Judge Richard E. Sise reduced claimant's filing fee from $50.00 to $20.00 pursuant to CPLR § 1101 (f). Inasmuch as there are no other fees or costs associated with the prosecution of this claim, claimant's motion to proceed as a poor person must be denied.
Claimant's motion for the assignment of counsel would similarly have to be denied. Although CPLR § 1102 grants to the court discretion to assign an attorney, there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation and such a request is generally denied except in cases involving loss of liberty or grievous forfeiture (Lassiter v Dept of Social Servces, 452 US 18, 25 [1981]; Matter of Smiley, 36 NY2d 433, 437 [1975]). Claimant's present claim seeks money damages only and as such, does not rise to the level of a grievous forfeiture nor does it demonstrate the loss of any fundamental right that would justify this Court appointing an attorney to appear on claimant's behalf.
Based on the foregoing, claimant's motion no. M-92650 is denied.
October 17, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Claim no. 131417, filed May 10, 2018; 2. Two supporting affidavits of Greg Huzinec both sworn to May 5, 2018.