New York State Court of Claims

New York State Court of Claims
WINDLEY v. THE STATE OF NEW YORK, # 2021-038-549, Claim No. 131082, Motion No. M-96842


Claimant's motion for assignment of counsel denied. Notice of motion was not served on county attorney in the county where the action is triable, and claimant failed to demonstrate that he is facing a prospective loss of liberty, grievous forfeiture, or other compelling circumstances warranting assignment of counsel.

Case information

UID: 2021-038-549
Claimant short name: WINDLEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131082
Motion number(s): M-96842
Cross-motion number(s):
Claimant's attorney: KENNETH WINDLEY
Defendant's attorney: No Appearance
Third-party defendant's attorney:
Signature date: August 12, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking monetary compensation for injuries allegedly sustained in the mess hall at Green Haven Correctional Facility (CF). Claimant now moves for the assignment of counsel to represent him at the trial of this claim. Defendant has not responded to the motion, which will be denied for the reasons that follow.

As an initial matter, claimant avers in his affidavit of service that he served his notice of motion upon the Chief Clerk of the Court of Claims and the Assistant Attorney General defending the claim, but the affidavit of service does not demonstrate that notice of the motion was given to the county attorney in the county where the action is triable, as required by the CPLR (see CPLR 1101 [c] ["if an action has already been commenced, notice of the motion (to proceed as a poor person) shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable"]). 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 had properly served the notice of motion on the county attorney, 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]). Here, claimant has submitted only a bare notice of motion requesting "the assignment of suitable counsel for trial purposes" (Notice of Motion, unnumbered paragraph 1), and has failed to include an affidavit demonstrating that he is facing a loss of liberty or grievous forfeiture or any other compelling circumstances warranting the assignment of trial counsel for this claim, which seeks monetary damages for personal injuries sustained when claimant splashed some dishwashing detergent on himself in the Green Haven CF mess hall (see Claim No. 131082, 2, Exhibit A [Inmate Injury Report, dated Aug. 14, 2017]). Because claimant has failed to make the required showing of a prospective loss of liberty or grievous forfeiture, or any other compelling circumstances, warranting the assignment of counsel, the motion must be denied.

Accordingly, it is

ORDERED, that claimant's motion number M-96842 is hereby DENIED.

August 12, 2021

Saratoga Springs, New York


Judge of the Court of Claims

Papers consdered:

1. Claim No. 131082, filed March 5, 2018;

2. Verified Answer, filed April 19, 2018;

3. Notice of Motion, dated May 11, 2021;

4. Affidavit of Service of Kenneth Windley, sworn to May 20, 2021.