Opinion
# 2015-015-104 Claim No. 124227 Motion No. M-87382
12-15-2015
CARLOS ABREU v. THE STATE OF NEW YORK
Carlos Abreu, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Assistant Attorney General
Synopsis
Motion for the assignment of counsel was denied.
Case information
| UID: | 2015-015-104 |
| Claimant(s): | CARLOS ABREU |
| Claimant short name: | ABREU |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124227 |
| Motion number(s): | M-87382 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Carlos Abreu, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 15, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for the assignment of counsel pursuant to CPLR 1101 and 1102.
The claim alleges that upon his arrival at Central New York Psychiatric Center on January 29, 2014 he had with him several items of personal property which were stored for safekeeping but not returned to him when he was transferred to prison.
The instant motion is procedurally defective as there is no affidavit of service indicating it was served on the County Attorney as required by CPLR 1101 (c).
Moreover, this is not a proper case for which the assignment of counsel. CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. 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). Such a case is one in which an individual is faced with a grievous forfeiture or loss of a fundamental right implicating his or her liberty interests (Matter of Giovanni S. (Jasmin A.), 89 AD3d 252 [2d Dept 2011]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]). The instant action seeking money damages for the loss of personal property fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel.
Based on the foregoing, the motion is denied.
December 15, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: 1. Notice of motion sworn to July 28, 2015; 2. Affirmation of Thomas Trace dated October 15, 2015.