Opinion
# 2015-015-095 Claim No. 126390 Motion No. M-87018
11-13-2015
MICHAEL HILL v. THE STATE OF NEW YORK
Michael Hill, Pro Se Honorable Eric T. Schneiderman, Attorney General No Appearance
Synopsis
Motion for the assignment of counsel was denied.
Case information
| UID: | 2015-015-095 |
| Claimant(s): | MICHAEL HILL |
| Claimant short name: | HILL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126390 |
| Motion number(s): | M-87018 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Michael Hill, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | November 13, 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 1102.
Claimant alleges he was physically assaulted and verbally abused in retaliation for lawsuits and grievances filed against certain correction staff at Great Meadow Correctional Facility (GMCF), including Dr. Howard Silverberg. Specifically, claimant alleges that he was deprived of appropriate clothing to go to Court in a federal court action he commenced against Dr. Silverberg and that immediately upon his return to GMCF from Court, Dr. Silverberg placed him in medical quarantine thereby requiring his continued confinement at that facility. Claimant alleges that on May 23, 2015, the date of his tier II disciplinary hearing, he was assaulted and verbally abused by correction staff at GMCF, including the Hearing Officer who presided over the hearing. Claimant was allegedly denied proper medical care following the assault and sustained permanent injuries for which he was denied pain medication. Claimant alleges that a false misbehavior report was issued following the incident and that he was unable to prove his innocence at the tier III disciplinary hearing which followed due to inadequate employee assistance.
The claim does not set forth the rule(s) allegedly violated.
The instant motion is procedurally defective as there is no affidavit attesting to service on either the Attorney General or the County Attorney as required by CPLR 1101 (c).
Moreover, this is not a proper case for 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 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.
To the extent claimant seeks to enjoin defendant from returning him to GMCF and a declaration of his rights, such relief is not incidental to the primary claim for money damages and this Court lacks jurisdiction to grant such relief (Feuer v State of New York, 101 AD3d 1550 [3d Dept 2012]).
Based on the foregoing, the motion is denied.
November 13, 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 June 20, 2015.