New York State Court of Claims

New York State Court of Claims
WARD v. THE STATE OF NEW YORK, # 2017-038-572, Claim No. 122631, Motion No. M-90351

Synopsis

Motion for assignment of counsel denied. Motion was not served upon Attorney General, claimant's affidavit in support of the motion does not state the nature of the action or provide sufficient facts as to the merits of the claim, as required by CPLR 1101 (a), claimant is not facing a loss of liberty or grievous forfeiture, and this personal injury action is the type of matter that could be prosecuted by counsel on a contingent fee basis.

Case information

UID: 2017-038-572
Claimant(s): CARLOS WARD
Claimant short name: WARD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122631
Motion number(s): M-90351
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: CARLOS WARD, Pro se
Defendant's attorney: No Appearance
Third-party defendant's attorney:
Signature date: October 5, 2017
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he seeks damages for injuries he allegedly sustained on April 17, 2011 while playing basketball on an outdoor basketball court at Green Haven Correctional Facility. Claimant moves for assignment of counsel. The motion will be denied for the following reasons.

At the threshold, claimant's affidavit of service demonstrates service upon the County Attorney and to the Court of Claims, but it does not demonstrate that the Attorney General was served with the motion (see CPLR 1101 [c] ["motion shall be served on all parties"]). This omission is fatal to his application for assigned counsel, and claimant's motion will be denied on that ground.

Even assuming that the Attorney General was served, claimant's application would still be denied. Certain information is statutorily required to be included in an application to the Court for poor person relief, including "the nature of the action [and] sufficient facts so that the merit of the contentions can be ascertained" (CPLR 1101 [a] [emphasis added]). In his affidavit in support of his motion for poor person relief and assignment of counsel, claimant does not state the nature of the action or provide sufficient facts as to the merits of the claim.

Moreover, 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 physical injury allegedly caused by defendant's negligence. Claimant is not facing a loss of liberty or grievous forfeiture, and this personal injury action is the type of matter that could be prosecuted by counsel on a contingent fee basis, and thus, 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-90351 is DENIED.

October 5, 2017

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Claim number 122631, filed April 18, 2013;

(2) Notice of Motion, dated May 1, 2017;

(3) Affidavit of Carlos Ward in Support, sworn to May 1, 2017;

(4) Affidavit of Service, sworn to May 1, 2017.