Polk v. State

W. BROOKS DeBOW

Synopsis

Motion by incarcerated individual for assignment of counsel to prosecute claim for medical (dental) malpractice denied. That his several requests for representation by counsel have been declined does not warrant assignment of counsel at public expense where claimant is not facing a future loss of liberty or other grievous forfeiture.

Case information

UID: 2013-038-539 Claimant(s): QUINNDALE POLK Claimant short name: POLK Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122638 Motion number(s): M-83431 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: QUINNDALE POLK, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: July 1, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision

Claimant, an individual currently incarcerated in a state correctional facility, filed this claim seeking compensation from defendant for injuries flowing from alleged medical malpractice and medical negligence arising from dental care rendered while he was incarcerated at Upstate Correction Facility in Malone, New York. Claimant makes a motion for assignment of counsel, which defendant opposes.

Claimant's affidavit of service does not demonstrate that the motion was served upon the county attorney in the county where the action is triable, as required by CPLR 1101 (c). This omission is fatal to his 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, 1016-1017 [Ct Cl 1979]; Pettus v State of New York, UID No. 2006-028-579 [Ct Cl, Sise, P.J., July 27, 2006]). Therefore, claimant's failure to comply with CPLR 1101 (c) renders his application defective and claimant's motion is denied on that ground.

Even if the motion had been properly served on all who are entitled to notice, claimant has not asserted facts that would warrant assignment of counsel at public expense. There is no absolute right to assignment of counsel in civil litigation (see Matter of Smiley, 36 NY2d 433, 438 [1975]). Assignment of counsel is generally warranted only when an individual is prospectively facing a "loss of liberty or grievous forfeiture" (id. at 437). 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 loss of liberty or grievous forfeiture and there are no other compelling circumstances (see Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], lv dismissed 93 NY2d 1000 [1999]; 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]).

Claimant's application does not demonstrate that he is facing a future loss of liberty or grievous forfeiture which requires the representation of counsel at public expense. Rather, the claim seeks monetary damages for injuries allegedly sustained in the past as the result of the torts of state correction employees, and thus, the claim does not provide a compelling circumstance warranting assignment of counsel (see Pettus v State of New York, UID No. 2008-044-549 [Ct Cl, Schaewe, J., June 12, 2008]). This claim for money damages is the type of claim that would typically be handled by an attorney on a contingent fee basis (see Bonaparte v State of New York, UID No. 2012-038-548 [Ct Cl, DeBow, J., July 11, 2012]; Pitt v State of New York, UID No. 2007-009-029 [Ct Cl, Midey, J., Sept. 27, 2007]). Claimant's status as a lay person incarcerated in a special housing unit does not warrant assignment of counsel (see Bonaparte v State of New York; Spaulding v State of New York, UID No. 2011-038-529 [Ct Cl, DeBow, J., May 16, 2011]) nor does the fact that his several requests for representation by counsel have been declined (see Hall v State of New York, UID No. 2009-038-535 [Ct Cl, DeBow, J., Apr. 14, 2009]).

Accordingly, it is

ORDERED, that motion No. M-83431 is DENIED.

July 1, 2013

Albany, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered
:

(1) Claim No. 122638, filed April 22, 2013;

(2) Motion for Appointment of Counsel, dated April 8, 2013, with Exhibits;

(3) Affirmation of Service by Mail of Molly Booth, Esq., dated April 18, 2013;

(4) Affirmation of Belinda A. Wagner, AAG, dated May 30, 2013;

(5) Affidavit of Quinndale Polk, sworn to June 10, 2013.