Opinion
# 2019-015-113 Claim No. 130570 Claim No. 131958 Motion No. M-93151 Motion No. M-93152
02-08-2019
JOSE FIGUEROA, 16 A 3651 v. THE STATE OF NEW YORK
Jose Figueroa, Pro Se Honorable Letitia James, Attorney General By: Belinda A. Wagner, Esq., Assistant Attorney General
Synopsis
Claimant's motions for the assignment of counsel were denied.
Case information
| UID: | 2019-015-113 |
| Claimant(s): | JOSE FIGUEROA, 16 A 3651 |
| Claimant short name: | FIGUEROA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130570, 131958 |
| Motion number(s): | M-93151, M-93152 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jose Figueroa, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Belinda A. Wagner, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 8, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves in two claims for the assignment of counsel.
In an Amended Claim (Claim No. 130570) filed August 10, 2018 claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), alleges a cause of action for medical negligence and/or malpractice arising from DOCCS' alleged failure to provide proper treatment of his varicose veins. In a separate claim filed September 7, 2018 (Claim No. 131958) claimant alleges a cause of action for medical negligence and/or malpractice arising from DOCCS' alleged failure to treat or properly treat his various other medical conditions, including chronic pain and nerve damage, back pain, carpel tunnel pain, shoulder pain and knee pain.
In both motions, which are nearly identical, claimant seeks the assignment of counsel based on his inability to sit for long periods of time in the prison law library due to back pain, hemorrhoids, and varicose veins and because his ability to write is limited by the effects of his carpel tunnel syndrome. As a result, claimant has utilized the services of a "jail house lawyer" who he fears may make a procedural error.
Initially, the instant 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).
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 monetary 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.
Based on the foregoing, the motions (M-93151 and M-93152) are denied.
February 8, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered: Claim No. 130570, M-93151:
1. Affidavit of Jose Figueroa sworn to October 30, 2018;Claim No. 131958, M-93152:
2. Affirmation in Opposition, dated November 19, 2018.
1. Affidavit of Jose Figueroa sworn to October 30, 2018.