WILLS v. CITY OF TROY (1999)

Supreme Court, Appellate Division, Third Department, New York.

Christine A. WILLS, Appellant, v. CITY OF TROY et al., Respondents.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, YESAWICH JR., PETERS and GRAFFEO, JJ. Christine A. Wills, Troy, appellant in person. Donald J. Shanley, Department of Law, Troy, for respondents.

Appeal from an order of the Supreme Court (Ceresia Jr., J.), entered January 8, 1998 in Rensselaer County, which denied plaintiff's motion for assignment of counsel.

In June 1997, plaintiff, acting pro se, filed a notice of claim alleging that she suffered personal injuries and other damages when, on two separate occasions, she was harassed by police officers employed by defendant City of Troy Police Department.   After filing an amended notice of claim clarifying her allegations, plaintiff moved for permission to proceed as a poor person and for assignment of counsel.   Supreme Court granted plaintiff poor person status but declined to assign counsel.   Plaintiff now appeals.

 We affirm.   While Matter of Smiley (36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53) made clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case (see, CPLR 1102[a];  Matter of Smiley, supra, at 438, 369 N.Y.S.2d 87, 330 N.E.2d 53).   The matter at hand is not, however, such a case, for the situation it presents is not one wherein the litigant is faced with a “grievous forfeiture or loss of a fundamental right” (Morgenthau v. Garcia, 148 Misc.2d 900, 902, 561 N.Y.S.2d 867).   Hence, Supreme Court's denial of plaintiff's request for counsel was a provident exercise of its discretion.

Plaintiff's remaining contentions are either unpreserved for our review or are otherwise lacking in merit.

ORDERED that the order is affirmed, without costs.

YESAWICH JR., J.

MIKOLL, J.P., CREW III, PETERS and GRAFFEO, JJ., concur.