Benito Franco, Claimant(s) v. The State of New York, Defendant(s) (2024)

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for the appointment of counsel:

Claimant's Intent to File For Counsel, Claimant's Affirmation In Request For Counsel and Exhibit 1

Affirmation in Opposition 2

Filed papers: Claim, Verified Answer

Claimant, a pro-se, incarcerated individual, who is hearing impaired and has limited comprehension of the English language, seeks the appointment of counsel in the prosecution of his claim alleging that, during his incarceration, the State deprived him of "adequate and meaningful healthcare due to the delay in receiving treatment for a medical condition related to [his] ear" (Claim, ¶ 4).

The State opposes the motion on two grounds. The first ground is that claimant has not complied with the requirements of CPLR 1101 (c), which requires service upon the county attorney. The second ground is that claimant does not have a right to the appointment of counsel in a civil case.

As correctly noted by the State in its opposition, claimant has failed to include an affidavit of service upon the county attorney with his motion papers and therefore claimant's application does not meet the requirements of CPLR 1101 (c). Moreover, there is no absolute right to the assignment of counsel in a civil case (see Matter of Smiley, 36 NY2d 433, 438 [1975]; Russo v State of New York, 50 AD3d 1554, 1555 [4th Dept 2008]). Rather, whether counsel shall be assigned in a particular case lies within the discretion of the court (CPLR 1102 [a]; Matter of Smiley, 36 NY2d at 438). Where, as here, the claim does not implicate claimant's liberty interests or present a situation where claimant is faced with a grievous forfeiture or loss of his fundamental right, the Court is not compelled to exercise its discretion in favor of granting claimant's motion for the assignment of counsel (see Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]; Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]).¹

Accordingly, claimant's motion for the appointment of counsel is DENIED.

FOOTNOTES

1.   To the extent that claimant may require an English language interpreter and an accommodation due to his hearing impairment, such issues will be addressed by the Court when the claim is scheduled for trial.

Walter Rivera, J.