Opinion
# 2017-038-559 Claim No. 119467 Motion No. M-90184
09-06-2017
HAROLD SCOTT v. THE STATE OF NEW YORK
HAROLD SCOTT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York No Appearance PETER M. RAYHILL, County Attorney By: Lawrence A. Sardelli, Esq., Assistant County Attorney
Synopsis
Motion for assignment of counsel denied. Affidavit required by CPLR 1101 (a) incorporated claim by reference, but claim was not served upon County Attorney, and thus, the merits of the claim could not be evaluated. Claimant's incarceration, limited access to law library, and significant limitations caused by illness were not a special circumstance warranting assignment of counsel on this claim for money damages for past injury.
Case information
| UID: | 2017-038-559 |
| Claimant(s): | HAROLD SCOTT |
| Claimant short name: | SCOTT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119467 |
| Motion number(s): | M-90184 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | HAROLD SCOTT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York No Appearance PETER M. RAYHILL, County Attorney By: Lawrence A. Sardelli, Esq., Assistant County Attorney |
| Third-party defendant's attorney: | |
| Signature date: | September 6, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in the Walsh Regional Medical Unit at Mohawk Correctional Facility, has filed this claim in which he alleges that numerous items of personal property were wrongfully confiscated from him and disposed of by correction officers. He seeks $911.27 in compensation for the lost property, in addition to $16,000.00 in punitive damages and emotional injuries. Claimant moves for assignment of counsel on the ground that he cannot prosecute this claim pro se because he has limited access to a law library and significant limitations to his ability to speak and to travel due to medical conditions, including stage 4 cancer, all of which, he asserts, constitute special circumstances warranting assignment of counsel. Claimant's affidavit of service demonstrates service of this motion upon the Assistant Attorney General and upon the County Attorney. Only the County Attorney has responded to the motion, and he opposes it on the ground that claimant's affidavit does not set forth sufficient information regarding the merit of his case.
Under the CPLR, certain information must be included in an application to the Court for poor person relief:
"The moving party shall file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses."
(CPLR 1101 [a] [emphasis added]). In his affidavit in support of his motion for poor person relief and assignment of counsel, claimant states that "[t]he facts of my case are described in my claim filed with the Court" (Scott Affidavit, ¶ 10), but it does not state the nature of the action or provide sufficient facts as to the merits of the claim. While claimant's affidavit of service indicates that the motion papers were served upon the County Attorney, a copy of the claim is not appended to the motion, and the affidavit does not state that the claim was served on the County Attorney. Thus, the motion that was served on the County Attorney does not comply with CPLR 1101 (a), and the motion must be denied (see Malloy v State of New York, UID No. 2014-048-150 [Ct Cl, Bruening, J., July 28, 2014]).
Even if claimant had fully complied with CPLR 1101 (a), the motion would be denied. 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 prospectively facing a "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 prospective loss of liberty or grievous forfeiture (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 No. 2006-044-504 [Ct Cl, Schaewe, J., Oct. 20, 2006]; Bayron v State of New York, UID No. 2006-032-075 [Ct Cl, Hard, J., Sept. 1, 2006]).
In the claim at issue on this motion, claimant seeks monetary compensation for allegedly tortious conduct that has occurred in the past, and thus, his request for assignment of counsel does not demonstrate that he is facing a future loss of liberty or grievous forfeiture which would require the representation of counsel at public expense. Notably, this claim could ordinarily be prosecuted by counsel on a contingent fee basis, and claimant asserts that he has "attempted to find an attorney to prosecute this action for over two years to no avail. [He] has written numerous letter to attorney's [sic] and the NYS Bar Association seeking help" (Scott Affidavit, ¶ 20). Thus, inasmuch as this claimant is not facing a loss of liberty or grievous forfeiture, the Court is unpersuaded that assignment of counsel at public expense to prosecute this claim for money damages is warranted or appropriate.
Accordingly, it is
ORDERED, that motion number M-90184 is DENIED.
September 6, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 119467, filed February 7, 2011; (2) Notice of Motion for Poor Person Relief and Assignment of Counsel, dated March 24, 2017; (3) Affidavit of Harold J. Scott in Support of Poor Person Relief and Assignment of Counsel, sworn to March 20, 2017; (4) Affidavit of Service by Mail, sworn to March 20, 2017; (5) Correspondence of Lawrence A. Sardelli, Esq., Assistant County Attorney, Oneida County, dated April 5, 2017; (6) Order of Hon. Richard E. Sise, Acting Presiding Judge, dated August 10, 2017.