New York State Court of Claims

New York State Court of Claims
WASHINGTON v. STATE OF NEW YORK, # 2018-038-526, Claim No. 120801, Motion Nos. M-91333, M-91334


Claimant's motion for assignment of counsel denied because it was not served upon the county attorney. Motion to compel disclosure is denied because the motion is an improper substitute for a discovery demand.

Case information

UID: 2018-038-526
Claimant short name: WASHINGTON
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 120801
Motion number(s): M-91333, M-91334
Cross-motion number(s):
Claimant's attorney: MICHAEL WASHINGTON, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 14, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, has filed this claim seeking monetary compensation for injuries allegedly sustained when he was assaulted by another inmate at Green Haven Correctional Facility (CF) in January 2011, and also for medical negligence and malpractice allegedly committed by medical staff at Sullivan CF thereafter. This claim was scheduled for trial at Green Haven CF on November 30, 2017, but was adjourned after claimant filed these motions seeking appointment of counsel (M-91333) and an order to produce documents (M-91334). Defendant opposes both motions.

Motion No. M-91333

Claimant's unsworn affidavit of service states that he served his notice of motion for appointment of counsel upon the Court of Claims and the Attorney General, but it does not state or otherwise demonstrate that the motion was served upon the county attorney in the county where the action is triable, as required by CPLR 1101 (c). This omission is fatal to an application for assigned counsel (see Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [Ct Cl 1979]; Pettus v State of New York, UID No. 2006-028-579 [Ct Cl, Sise, P. J., July 27, 2006]). Claimant's failure to comply with CPLR 1101 (c) renders his application defective and his motion is denied on that ground.

Even if claimant's motion had been properly served on all who are entitled to notice, 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 who is 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 unless the movant is facing a prospective loss of liberty or grievous forfeiture and there are no other compelling circumstances (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]). This claim alleges past tortious conduct, and claimant has not demonstrated that he is facing a future loss of liberty or grievous forfeiture which would require the representation of counsel at public expense. Nor does the claim provide a compelling circumstance warranting assignment of counsel (see Malik v State of New York, UID No. 2008-038-614 [Ct Cl, DeBow, J. Sept, 30, 2008]; Pettus v State of New York, UID No. 2008-044-549 [Ct Cl, Schaewe, J., June 12, 2008]). Claimant's status as an incarcerated lay person does not warrant assignment of counsel in this claim for money damages (see Bonaparte v State of New York, UID No. 2012-038-548 [Ct Cl, DeBow, J., July 11, 2012]; Spaulding v State of New York, UID No. 2011-038-529 [Ct Cl, DeBow, J., May 16, 2011]), particularly since it is the type of claim that would typically be handled by an attorney on a contingent fee basis (see Pettus v State of New York, UID No. 2008-044-549; Pitt v State of New York, UID No. 2007-009-029 [Ct Cl, Midey, J., Sept. 27, 2007]).

Motion No. M-91334

By way of this motion, claimant seeks production of a memorandum from Inspector General Investigator Castro regarding the need to remove claimant from Green Haven CF to ensure his safety, and also seeks the name of an officer who allegedly assaulted him, spurring claimant to file a complaint with the Inspector General's Office that resulted in the recommendation to remove claimant from Green Haven CF. Defendant opposes the motion on the ground that any reports from the Inspector General's Office are exempt from disclosure under the public interest privilege and that claimant's request for information is not date specific.

Claimant's motion will be denied as it appears that this motion is being used as an improper substitute for discovery (see CPLR 3102 [a]). Service of a discovery demand that is followed by the adverse party's failure to respond or denial of production is a predicate to a motion to compel disclosure (see CPLR 3124).

Accordingly, it is

ORDERED, that claimant's motion number M-91333 is DENIED; and it s further

ORDERED, that claimant's motion number M-91334 is DENIED.

March 14, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim number 120801, filed January 17, 2012;

(2) Permission Seeking Assignment of Counsel (M-91333), filed November 2, 2017;

(3) Affidavit of Service of Motion (M-91333) of Michael Washington, dated October 22, 2017;

(4) Notice of Motion (M-91334), sworn to October 16, 2017;

(5) Notice of Demand for Production of Documents (M-91334), sworn to October 16, 2017;

(6) Correspondence of Nancy Schulman, Principal Law Clerk, dated November 17, 2017;

(7) Affirmation of Jeane L. Strickland Smith, AAG in Opposition, dated November 27, 217;

(8) Reply Submission of Michael Washington in Opposition, dated December 14, 2017.