Opinion
# 2019-015-157 Claim No. 127246 Motion No. M-94022
06-28-2019
JACOB D. ROGERS v. THE STATE OF NEW YORK
Jacob D. Rogers, Pro se Honorable Letitia James, Attorney General By: No Appearance
Synopsis
Claimant's motion for the assignment of counsel was denied.
Case information
| UID: | 2019-015-157 |
| Claimant(s): | JACOB D. ROGERS |
| Claimant short name: | ROGERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127246 |
| Motion number(s): | M-94022 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jacob D. Rogers, Pro se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | June 28, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for wrongful confinement to his cell for a 30-day period in 2014. He now moves for the assignment of counsel on the basis he is a layman and lacks the knowledge required to prepare for the upcoming trial of his claim.
Initially, the instant motion is procedurally defective as there is no affidavit of service indicating service of the motion on the County Attorney as required by CPLR 1101 (c).
Moreover, this is not a proper case for the discretionary assignment of counsel under CPLR 1102. In Matter of Smiley (36 NY2d 433 [1975]), the Court of Appeals held 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" (id. 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" (id. at 441; see also CPLR 1102). Such a case 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]). The instant action seeking money damages for a 30-day period of confinement to his cell fails to implicate claimant's fundamental rights so as to warrant the assignment of counsel. Moreover, attorneys' fees in such actions are generally paid on a contingency fee basis thereby permitting indigents to obtain the services of an attorney without the need for the assignment of counsel under CPLR 1102.
Based on the foregoing, the claimant's motion is denied.
June 28, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated May 20, 2019;
2. Affidavit of Jacob D. Rogers sworn to May 20, 2019.