Opinion
# 2012-041-004 Claim No. 115674 115676, 115678 Motion No. M-80928
02-17-2012
JONES v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for appointment of counsel in medical malpractice/negligence actions is denied. Case information
UID: 2012-041-004 Claimant(s): ANTONIO JONES Claimant short name: JONES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115674, 115676, 115678 Motion number(s): M-80928 Cross-motion number(s): Judge: FRANK P. MILANO ANTONIO JONES Claimant's attorney: Pro Se Defendant's attorney: NONE Third-party defendant's attorney: Signature date: February 17, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for an order appointing counsel to represent him without payment of any fee in these actions sounding in negligence/medical malpractice. Defendant has not appeared in opposition to the motion.
Claimant's motion is denied.
Assuming claimant seeks assignment of counsel pursuant to CPLR § 1102 (a), the "application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated" (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR § 1101 [c]). The application has not been served, as required on "the county attorney in the county in which the action is triable" (CPLR § 1101 [c]).
Further, while it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 [1975]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant apparently seeks money damages for personal injuries allegedly caused by defendant's medical malpractice and/or negligence. Such cases are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis. There is no "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (148 Misc 2d at 903).
Claimant's motion for an order appointing counsel to represent him without payment of any fee in these actions is denied.
February 17, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed January 19, 2012;
2. Affirmation of Antonio Jones, dated December 28, 2011.