Opinion
# 2014-015-028 Claim No. 124474 Motion No. M-85485
12-19-2014
RASHAWN C. HANESWORTH v. THE STATE OF NEW YORK
Rashawn C. Hanesworth, Pro Se Honorable Eric T. Schneiderman, Attorney General No Appearance
Synopsis
Motion for the assignment of counsel was denied.
Case information
| UID: | 2014-015-028 |
| Claimant(s): | RASHAWN C. HANESWORTH |
| Claimant short name: | HANESWORTH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124474 |
| Motion number(s): | M-85485 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Rashawn C. Hanesworth, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | December 19, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a pro se inmate, moves for the assignment of counsel with regard to his claim alleging an assault by correction officers at Great Meadow Correctional Facility on August 10, 2013.
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 fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel. Moreover, attorneys' fees in such actions are generally paid on a contingency fee basis thereby permitting indigents to obtain the services of an attorney without the need for the assignment of counsel under CPLR 1102.
Lastly, the motion is procedurally defective as there is no affidavit of service indicating that it was served on the County Attorney as required by CPLR 1101 (c).
Accordingly, claimant's motion is denied.
December 19, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated July 6, 2014, with exhibits.