Opinion
# 2016-015-152 Claim No. 127807 Motion No. M-88473
09-02-2016
ALBERTO RESTO v. THE STATE OF NEW YORK
Alberto Resto, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General
Synopsis
Motion for leave to proceed as a poor person and for the assignment of counsel was denied.
Case information
| UID: | 2016-015-152 |
| Claimant(s): | ALBERTO RESTO |
| Claimant short name: | RESTO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Caption is amended sua sponte to reflect the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127807 |
| Motion number(s): | M-88473 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Alberto Resto, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Paul F. Cagino, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 2, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, seeks leave to proceed as a poor person and for the assignment of counsel.
So far as the Court can decipher from the claim, claimant seeks damages for injuries sustained in an inmate-on-inmate assault. The claim, together with an application for a reduction of the filing fee, was filed on April 15, 2016 and, by Order dated April 29, 2016, claimant's application for a reduction of the filing fee was granted.
CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. In Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding, the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (36 NY2d at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (36 NY2d at 441; see also CPLR 1102). A proper case for the discretionary appointment of counsel is one in which an individual is faced with a grievous forfeiture or loss of a fundamental right implicating his or her liberty interests (Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County1990]; Matter of Ellis v Gardner, 51 Misc 3d 1217 [A] [Ct Cl 2016]). The instant action for money damages fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel. Moreover, attorneys' fees in personal injury actions such as this are generally paid on a contingency fee basis thereby permitting indigents to obtain the services of an attorney without the need for an assignment of counsel under CPLR 1102.
In addition, other than the filing fee, which has already been reduced, no additional fees are required to litigate a claim in the Court of Claims. Notably, inmates without sufficient funds to pay for postage may seek advance payment through the Department of Corrections and Community Supervision (7 NYCRR 721.3 [a] [3] [iv] -[vii]).
Lastly, the motion is procedurally defective as it was not served on the County Attorney as required by CPLR 1101 (c). In addition, defense counsel indicates by letter dated May 13, 2016 that it was not served with the motion either.
Accordingly, claimant's motion is denied.
September 2, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion filed April 15, 2016;
2. Affidavit of Alberto Resto sworn to March 24, 2016;
3. Letter dated May 13, 2016 from Paul F. Cagino.