Opinion
# 2011-038-577 Claim No. 118260 Motion # 2011-038-577 Claim No. M-80272 # 2011-038-577 Claim No. M-80286
12-02-2011
BELL v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to amend claim granted. Defendant candidly conceded absence of prejudice, and proposed amended claim may tend to clarify and focus issues to be litigated. Motion for assignment of counsel denied, where there is no prospective loss of liberty or grievous forfeiture, and inmate-on-inmate assault claim is of the type that would typically be handled by an attorney on a contingent fee basis. Case information
UID: 2011-038-577 Claimant(s): JOSHUA BELL Claimant short BELL name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended, sua sponte to reflect the name) : State of New York as the only proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 118260 Motion number(s): M-80272, M-80286 Cross-motion number (s): Judge: W. BROOKS DeBOW Claimant's JOSHUA BELL, Pro se attorney: ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: December 2, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual incarcerated in a state correctional facility, filed this claim that alleges that he was assaulted by two other inmates in a "visit room" at Upstate Correctional Facility on November 23, 2009. The claim also alleges that the two alleged assailants should not have been in the visit room due to their "double cell status" and that the visit room was not supervised by correction officers. The claim further alleges that claimant had previously informed the correction officer who escorted him to the visit room that he had been threatened by one of his alleged assailants. Claimant has filed two motions, one of which seeks to amend the claim (M-80272), and the other of which requests appointment of counsel (M-80286). Defendant opposes both motions.
Leave to amend a claim shall be "freely given" (CPLR 3025 [b]), and whether to grant or deny such a motion is a matter within the discretion of the Court (see Swergold v Cuomo, 70 AD3d 1290 [3d Dept 2010]). A motion pursuant to CPLR 3025(b) is properly granted where the proposed amendment is not plainly lacking in merit and where the opponent of the motion does not demonstrate actual prejudice were the motion to be granted (see Paolucci v Mauro, 74 AD3d 1517, 1519 [3d Dept 2010]; Leclaire v Fort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [3d Dept 2008]). "Prejudice sufficient to warrant denial of a motion for leave to amend generally requires a showing that the party opposing the motion has undergone a change in position, or foregone a right, in reliance upon an omission in the pleading sought to be amended" (U.S. Cablevision Corp. v Theodoreu,192 AD2d 835, 837 [3d Dept 1993]).
Claimant's motion papers state that he seeks to amend the claim to provide "a better precise understanding of my propose[d] action" (Notice of Motion). The proposed claim is also accompanied by a copy of a facility "speed message" addressed to claimant, which addresses claimant's single-cell status, and an inmate injury report that apparently refers to the assault at issue in this claim. Defendant candidly admits that it is not prejudiced by the proposed amendment (see Wagner Affirmation in Opposition, ¶5), but argues that the proposed amended claim lacks substantive changes, and that there is no reason to amend the claim to include an exhibit that may be used at trial (id. ¶4). Contrary to defendant's contention, a comparison of the claim and the proposed amended claim does reveal substantive additions to the claim, as the proposed amended claim contains allegations addressed to defendant's duty to protect him that are not included in the initial claim. These allegations are relevant to the claim, may lend focus to the issues that are to be litigated, and do not appear to prejudice defendant. Further, the proposed amended claim more substantially conforms with CPLR 3014, which may also tend to provide focus in the litigation. To the extent that the exhibits to the proposed claim are documents that may be offered as an exhibit at trial, such surplusage does not provide a basis to deny the motion, especially where, as here, no prejudice flows from the exhibits. Accordingly, the Court will exercise its discretion to grant claimant's motion to amend his claim.
Turning to claimant's motion for assignment of counsel, the papers submitted by claimant demonstrate that the motion for assignment of counsel was served upon the Attorney General, but they do not demonstrate that the motion was served upon the county attorney in the county where the action is triable (see CPLR 1101 [c]). This omission is fatal to the application for assigned counsel (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016-1017 [Ct Cl 1979]; Pettus v State of New York,UID #2006-028-579, Claim No. 109717, Motion No. M-71735, Sise, P.J. [July 27, 2006]). Claimant's failure to comply with CPLR 1101 (c) renders his application defective and his motion must be denied on that ground.
Even if the motion had been properly served on all who are entitled to notice, claimant has not asserted facts that would warrant assignment of counsel at public expense. There is no absolute right to assignment of counsel in civil litigation (see Matter of Smiley, 36 NY2d 433, 438 [1975]). Assignment of counsel is generally warranted only when an individual is facing a prospective "loss of liberty or grievous forfeiture" (id. at 437). While this Court may, in its discretion, assign counsel to a claimant seeking to prosecute a private action (see id. at 438; Wilson v State of New York, 101 Misc 2d 924, 926 [Ct Cl 1979]), such relief will not generally be granted if the movant is not facing a loss of liberty or grievous forfeiture and there are no other compelling circumstances (see Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; see e.g. Jabbar v State of New York, UID #2006-044-504, Claim No. 112376, Motion Nos. M-72082, M-72223, Schaewe, J. [Oct. 20, 2006]; Bayron v State of New York, UID #2006-032-075, Claim No. 112389, Motion No. M-71902, Hard, J. [Sept. 1, 2006]). Here, the claim for money damages to compensate for personal injuries sustained as a result of an inmate-on-inmate assault is the type of claim that would typically be handled by an attorney on a contingent fee basis (see Adorno v State of New York, UID #2006-041-007, Claim No. 112123, Motion No. M-72237, Milano, J. [Oct. 3, 2006]; Anderson v State of New York, UID #2001-011-512, Claim No. 102254, Motion No. M-62646, McNamara, J. [Jan. 25, 2001]). Indeed, claimant's motion appears to request that the Court find an attorney for him who will take the claim on a contingent fee basis, but that is not a proper request of the Court.
Accordingly, it is
ORDERED, that claimant's Motion No. M-80272 to amend the claim is GRANTED, and it is further
ORDERED, that within 45 days of the date of filing of this Decision and Order, claimant shall serve and file the amended claim in accordance with the service and filing requirements of the Court of Claims Act, and it is further
ORDERED, that defendant shall thereafter serve and file an answer to the amended claim in accordance with the service and filing requirements of the Civil Practice Laws and Rules and the Uniform Rules for the Court of Claims, and it is further
ORDERED, that claimant's Motion No. M-80286 for assignment of counsel is DENIED.
December 2, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim No, 118260, filed April 12, 2010;
(2) Notice of Motion, dated August 2, 2011 (M-80272), with Proposed Amended Claim with exhibits, and Verifications, sworn to August 4, 2011;
(3) Affirmation in Opposition of Belinda A. Wagner, AAG, dated September 15, 2011, with Exhibit A;
(4) Notice of Motion, dated August 9, 2011 (M-80286), with two (2) Affidavits of Service, sworn to August 12, 2011;
(5) Affirmation of Belinda A. Wagner, AAG, dated September 12, 2011.