Claimant's application for leave to reargue motion denying appointment of counsel to represent him without payment of a fee in personal injury action is denied where claimant fails to show that the Court overlooked or misapprehended the relevant facts or law in its prior Decision and Order.
|Claimant(s):||MARK ALAN LAPIERRE|
|Claimant short name:||LAPIERRE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MARK ALAN LAPIERRE
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 13, 2020|
|See also (multicaptioned case)|
Claimant, an inmate at Washington Correctional Facility, Washington County, New York, moves to reargue his prior motion (M-94902) seeking appointment of counsel regarding his personal injury claim which arose at Clinton Correctional Facility, Clinton County, New York. Claimant's prior motion (M-94902) was denied by the Court's Decision and Order, filed March 4, 2020.
Defendant opposes the claimant's reargument motion.
The Court's prior Decision and Order held, at relevant part, as follows:
"Initially, the Court notes that, as set forth above, the claim alleges straightforward causes of action against defendant for assault by correction officers and for subsequent medical negligence and deliberate indifference by defendant's employees. Yet, by claimant's own admission he has already submitted "approximately 12 to 16 Motions" since the claim was filed in December of 2013.
Claimant seeks assignment of counsel pursuant to CPLR 1102 (a). However, the "application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated" (Sebastiano v State of New York, 92 AD2d 966 [3d Dept 1983]; CPLR 1101 [c]). The application has not been served, as required, on "the county attorney in the county in which the action is triable" (CPLR 1101 [c]).
Further, while it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 ; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant seeks money damages for personal injuries allegedly caused by an assault by defendant's employees. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.
Claimant has not shown a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (148 Misc 2d at 903). Claimant's motion for an order assigning counsel to represent him without payment of any fee in this action is denied."
"It is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999]).
Claimant has not shown that the Court "overlooked or misapprehended" the relevant facts or law in its prior decision and order (see CPLR 2221 [d] ).
The claimant's motion is denied.
August 13, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion to Reargue, filed March 19, 2020;
2. Affidavit of Mark A. LaPierre, sworn to March 13, 2020, and attached exhibits;
3. Affirmation in Opposition of Michael T. Krenrich, dated July 9, 2020.