Opinion
# 2016-018-706 Claim No. 126285 Motion No. M-87790
03-04-2016
ROBERT RIVERA v. STATE OF NEW YORK
ROBERT RIVERA Pro Se NO APPEARANCE
Synopsis
Claimant's motion to appoint an attorney to represent him is denied. Claimant failed to serve county attorney in the county where the action is triable, and the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter.
Case information
| UID: | 2016-018-706 |
| Claimant(s): | ROBERT RIVERA |
| Claimant short name: | RIVERA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126285 |
| Motion number(s): | M-87790 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ROBERT RIVERA Pro Se |
| Defendant's attorney: | NO APPEARANCE |
| Third-party defendant's attorney: | |
| Signature date: | March 4, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves this Court to appoint an attorney to represent him on his pending claim for medical negligence and medical malpractice. Defendant has not opposed the motion.
It appears from the affidavit of service attached to the motion that Defendant was served with a copy of the motion. --------
The claim was filed on June 12, 2015, when Claimant was an inmate housed at Bare Hill Correctional Facility. Based upon the motion documents, Claimant is currently being held in the Erie County Jail, and he indicates he was "discharged" from State custody. Claimant argues he needs an assigned attorney because he cannot afford to hire one. He also avers that the case has complex legal issues which he is untrained to handle.
A motion for permission to proceed as a poor person must be served not only upon the parties, but also upon the county attorney in the county in which the action is triable (CPLR 1101 [c]). Here, Claimant has failed to serve the St. Lawrence County Attorney with a copy of this motion, rendering the motion defective and requiring the Court to deny the request for appointment of counsel on that ground alone (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]).
Even if the county attorney had been served, however, Claimant's motion would still be denied. The appointment of counsel in this type of case, which is for personal injuries as a result of the State's alleged medical negligence or medical malpractice, is not required by the constitution or statute, it is discretionary (see Matter of Smiley v State of New York, 36 NY2d 433 [1975]; Russo v State of New York, 50 AD3d 1554 [4th Dept 2008]). Absent constitutional or statutory authority, the Court lacks the authority to direct compensation of private counsel out of public funds, (Matter of Smiley, 36 NY2d at 438) where there is no risk of a loss of liberty or grievous forfeiture and in this type of civil case, the provision of counsel is typically not directed (see Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]).
After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter. Claimant, however, may be able to retain an attorney on a contingency basis.
Based upon the foregoing, Claimant's motion is DENIED in its entirety.
March 4, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Robert Rivera, in support, sworn to December 16, 2015.