Claimant's motion for appointment of counsel denied. Claimant failed to provide sufficient facts as to the merits of the claim for which he sought assignment of counsel or that he was facing a loss of liberty or grievous forfeiture or other compelling circumstance.
|Claimant(s):||NASEAN BONIE (15-A-1872)|
|Claimant short name:||BONIE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||NASEAN BONIE, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: No Appearance
|Third-party defendant's attorney:||JAMES M. FEDORCHAK,
Dutchess County Attorney
By: Elizabeth M. Wolf, Senior Assistant County Attorney
|Signature date:||July 8, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, has filed this motion seeking appointment of counsel. The State has not opposed the motion, and the Dutchess County Attorney's Office has taken no position on the motion, which will be denied for the reasons that follow.
Claimant avers that he is requesting assignment of counsel because he is "ignorant of the law and the nuances of motion practice and litigation in this court," and he is "a veteran suffering from PTSD and [is] currently taking prescription medication for same as well as other psychotropic medication" (Motion to Assign Counsel, ¶ 1). Claimant states that he is seeking assigned counsel "for the purpose of preparing documents to be filed with the court" because he has "no idea of what to do," and although he has received help from "clerks in the law library," he believes that "because of the complaints that [he has] been making, [he is] liable to be moved at any time to another facility" (id. at ¶ 2). Claimant avers that his efforts to obtain counsel hav failed, that he cannot afford an attorney due to his incarceration, and that he has been unable to obtain pro bono representation (see id. at ¶ 3). Claimant "understand[s] that [he has] no right to be appointed counsel in this action," but he asks the Court to exercise its authority to do so because "[a]s a pro se litigant, [he is] unable to depose the defendants; or seek and collect any new evidence/information that may arise as a result of any depositions," and "[a]s to [his] limited knowledge there are several forthcoming technical procedural instances yet to come, which [he is] totally incapable of understanding, much less executing" (id. at ¶¶ 4-5).(1)
As an initial matter, 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]). Here, claimant's motion for assignment of counsel does not indicate that it is made with respect to any claim currently pending before the court or state the nature of the action for which is seeks the assignment of counsel, and thus does not provide sufficient facts as to the merits of the claim for which he seeks assignment of counsel. Accordingly, claimant's application must be denied.
In any event, it is well settled that there is no absolute right to assignment of counsel in civil litigation (see Matter of Smiley, 36 NY2d 433, 438 ). 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" (Matter of Smiley, 36 NY2d at 437; see Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 ) and there are no other compelling circumstances (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]). As discussed above, claimant has not identified the nature of the claim for which he is seeking assignment of counsel and thus has not shown that he is facing a loss of liberty or grievous forfeiture, and, notwithstanding claimant's assertions regarding his inability to conduct litigation unassisted, he has not demonstrated that there is a compelling circumstance warranting assignment of counsel.
Accordingly, it is
ORDERED, that claimant's motion number M-95227 is DENIED.
July 8, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Motion to Assign Counsel, sworn to December 13, 2019;
2. Affidavit of Service of Nasean Bonie, sworn to December 13, 2019;
3. Correspondence of Elizabeth M. Wolf, Senior Assistant County Attorney, dated February 4, 2020.
1. Notwithstanding that claimant's affidavit of service does not aver that the motion was served upon the county attorney in the county where the action is triable, as required by CPLR 1101 (c), which would be fatal to an application for assigned counsel (see Sebastiano v State of New York, 92 AD2d 966, 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, J., July 27, 2006]), the Dutchess County Attorney's Office has submitted a letter stating that it has received the motion and that it takes no position on the application (see Wolf Correspondence, dated February 4, 2020). Thus, the motion will not be denied for failure to comply with CPLR 1101 (c).