Opinion
# 2014-015-484 Claim No. 123270 Motion No. M-84468
04-10-2014
KEON HART v. THE STATE OF NEW YORK
Keon Hart, Pro Se Honorable Eric T. Schneiderman, Attorney GeneralNo Appearance
Synopsis
Motion for the assignment of counsel was denied.
Case information
| UID: | 2014-015-484 |
| Claimant(s): | KEON HART |
| Claimant short name: | HART |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123270 |
| Motion number(s): | M-84468 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Keon Hart, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney GeneralNo Appearance |
| Third-party defendant'sattorney: | |
| Signature date: | April 10, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Claimant, a pro se inmate, moves for the assignment of counsel on the ground he is"incapacitated and unable to manage [his] personal and financial affairs" (claimant's unswornstatement dated December 29, 2013, p. 1).
The instant claim, photocopied from A Jailhouse Lawyer's Manual, is entitled SampleNegligence Tort Claim and alleges in a handwritten blank on the form that the negligence of theOffice of Mental Health resulted in injury to the claimant on an unspecified day in September 2013(claim, ¶ 2). The claim further alleges the defendant breached its duty of care to the claimant in thata large portion of the ceiling fell on the claimant in the day room of "XYZ Correctional Facility" onMay 5, 2000 (claim, ¶ 5). Claimant also indicated by filling in certain other blanks on the form thathe underwent surgery at Erie County Medical Center and continues to suffer from his injuries.
CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]) theCourt of Appeals held that there is no constitutional or statutory requirement that indigents beassigned private counsel in civil litigation. In so holding, the Court recognized that unlike adefendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty orgrievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have noabsolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary powerto assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). Sucha case is one in which an individual is faced with a grievous forfeiture or loss of a fundamental rightimplicating his or her liberty interests (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2d Dept2011]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]; Wills v City of Troy, 258AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]). The instant action seeking moneydamages fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel.Moreover, attorneys' fees in personal injury actions are generally paid on a contingency fee basisthereby permitting indigents to obtain the services of an attorney without the need for the assignmentof counsel under CPLR 1102. Lastly, the motion is procedurally defective as there is no affidavit ofservice indicating that it was served on the County Attorney as required by CPLR 1101 (c).
If claimant is in fact incapacitated and unable to manage his personal and financial affairs,no proof of which is before the Court on the instant motion, he may contact an organization such asPrisoners' Legal Services of New York located at 41 State Street, Suite M112, Albany, New York12207 for assistance.
Accordingly, claimant's motion is denied.
April 10, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated December 29, 2013;
Unsworn statement of Keon Hart dated December 29, 2013.