New York State Court of Claims

New York State Court of Claims
FOX v. THE STATE OF NEW YORK, # 2017-015-281, Claim No. 129296, Motion No. M-91032


Claimant's motion for the assignment of counsel was denied.

Case information

UID: 2017-015-281
Claimant(s): STEPHEN FOX
Claimant short name: FOX
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129296
Motion number(s): M-91032
Cross-motion number(s):
Claimant's attorney: Stephen Fox, Pro Se
Defendant's attorney: Honorable Eric T. Schneiderman, Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 13, 2017
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for injuries allegedly sustained on July 21, 2014 when correction personnel extracted him from his cell with the use of chemical agents. Claimant now moves for the assignment of counsel pursuant to CPLR 1102.

The instant motion is procedurally defective as there is no affidavit of service demonstrating service 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; see also People v Jornov, 65 AD3d 363 [4th Dept 2009]). 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 for the loss of personal property fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel.

Based on the foregoing, the motion is denied.

November 13, 2017

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Affidavit of Stephen Fox in Support of Motion, sworn to August 10, 2017;
  2. Affidavit in Support of Application for Appointment of Counsel, sworn to August 10, 2017;
  3. Affirmation in Opposition, dated September 21, 2017.