Opinion
# 2019-015-139 Claim No. 127876 Motion No. M-93741
05-02-2019
JOSE SOTO v. THE STATE OF NEW YORK
Jose Soto, Pro Se No Appearance
Synopsis
Motion for the assignment of counsel was denied.
Case information
| UID: | 2019-015-139 |
| Claimant(s): | JOSE SOTO |
| Claimant short name: | SOTO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127876 |
| Motion number(s): | M-93741 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jose Soto, Pro Se |
| Defendant's attorney: | No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | May 2, 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, moves for the assignment of counsel in his claim seeking damages for injuries allegedly sustained when he was beaten by correction officers at Great Meadow Correctional Facility on December 24, 2014.
Initially, the instant motion is procedurally defective as there is no affidavit of service indicating that it was served on either the Attorney General or the County Attorney as required by CPLR 1101 (c).
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" (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 as one in which an individual is faced with a grievous forfeiture or loss of a fundamental right implicating his or her liberty interests (Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2d Dept 2011]; 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 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.
By Order dated May 12, 2016, claimant received a reduced filing fee pursuant to CPLR 1101 (f).
Based on the foregoing, the motion is denied.
May 2, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Undated, unsworn notice of motion.