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New York State Court of Claims

New York State Court of Claims
N.B. v. THE STATE OF NEW YORK, # 2020-038-584, Claim No. 135025, Motion No. M-95991

Synopsis

Motion for assignment of counsel denied. Claimant failed to show he was facing a loss of liberty or grievous forfeiture, or any other compelling circumstance. Motion for reduced filing fee denied as moot.

Case information

UID: 2020-038-584
Claimant(s): N.B.(1)
Claimant short name: N.B.
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 135025
Motion number(s): M-95991
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: N.B., Pro se
Defendant's attorney: No Appearance
Third-party defendant's attorney:
Signature date: December 14, 2020
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was verbally harassed and sexually assaulted by a correction officer at Green Haven Correctional Facility (CF) on June 29, 2020. Claimant now moves for assignment of counsel and a reduction of the filing fee. Defendant has not opposed the motion, which will be denied for the reasons that follow.

The claim alleges that on the afternoon of June 29, 2020, claimant "was *(Sadistically)* (Assaulted) by" a correction officer in front of his cell at Green Haven CF (Claim No. 135025, 2). The claim alleges that the correction officer used racial slurs toward claimant, spat in claimant's face, and sexually assaulted claimant (see id.).

In support of the instant motion, claimant avers that he requires the appointment of counsel because he is "ignorant of the law and the nuances of motion practice and litigation in this court," and because he is "a veteran suffering from 'P.T.S.D.' " for which he is prescribed "medication as well as other psychotropic medication" (Motion to Assign Counsel, 1). Claimant states that he requires the assignment of counsel "for the purpose of preparing documents to be filed with the Court" because claimant "ha[s] 'NO-IDEA' of what to do," and although he has received assistance from "clerks in the law library," he believes he may be moved to a different facility "at anytime" due to "complaints that [he has] been making" (id. at 2). Claimant avers that he has been unable to obtain counsel, that he cannot afford a retainer fee, and that his requests for pro bono counsel have been rejected (see id. at 3). Claimant further avers that because he is representing himself, he is unable to conduct examinations before trial or engage in paper discovery, and that he believes based on his "limited knowledge" that "there are several forthcoming technical procedural instances . . . , which [he is] totally incapable of understanding, much less executing" (id. at 5).

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 [1975]). 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 [1999]) 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, the claim alleges that claimant was verbally harassed and sexually assaulted by a correction officer, but claimant has not shown in connection with this motion that he is facing a loss of liberty or grievous forfeiture as a result of the alleged actions of the correction officer, 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.(2) To the extent claimant moves for a reduced filing fee, the motion will be denied as moot inasmuch as claimant was previously granted a reduction of the filing fee (see Order of Hon. Richard E. Sise, dated September 9, 2020; see also 22 NYCRR 206.5-b).

Accordingly, it is

ORDERED, that claimant's motion number M-95991 is DENIED.

December 14, 2020

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

1. Claim No. 135025, filed July 9, 2020;

2. Notice of Motion, dated July 1, 2020;

3. Motion to Assign Counsel, sworn to July 1, 2020;

4. Affidavit of Service of N.B., sworn to July 1, 2020;

5. Order of Hon. Richard E. Sise, dated September 9, 2020.


1. The caption has been amended sua sponte pursuant to Civil Rights Law 50-b to grant claimant anonymity inasmuch as the claim alleges that claimant is the victim of a sexual offense as defined in Article 130 of the Penal Law.

2. The CPLR requires that "if an action has already been commenced," notice of a motion to proceed as a poor person must be served on "the county attorney in the county in which the action is triable" (CPLR 1101 [c]). The failure to do so 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]). Here, c

laimant's affidavit of service demonstrates that he served this motion for assigned counsel upon the Office of the Clerk of the Court of Claims and the Office of the Attorney General, but it does not demonstrate that the motion was served upon the county attorney in the county where the action is triable (see Claim No. 135025, attachments [Affidavit of Service of N.B., sworn to July 1, 2020]). However, claimant filed and served his motion for assignment of counsel simultaneously with the instant claim, and thus the action had not "already been commenced" at the time that he brought this motion, and it will not be denied for failure to serve the county attorney with notice of the motion.