Opinion
No. 16–0877.
04-27-2016
In the Matter of the Application of Robert ELLIS, 09A0367, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Gerald GARDNER, Lieutenant; L. Pingotti, Deputy Superintendent of Security; Joseph T. Smith, Superintendent, Respondents.
Robert Ellis, Petitioner, pro se.
Robert Ellis, Petitioner, pro se.
LISA M. FISHER, J.
Supreme Court (Cahill, J.) granted your ex parte Order to Show Cause for alternative service and for a poor person order. The matter has been reassigned to this Court, which is in receipt of your article 78 petition with supporting papers/exhibits and your request to be assigned counsel. For the reasons that follow, your request for assigned counsel is denied.
Under CPLR § 1102(a), a court has discretion to assign counsel to a party granted poor person status. In civil actions such as an article 78 proceeding, however, indigency by itself does not entitle a party to the appointment of free counsel. (See Matter of Smiley, 36 N.Y.2d 433 [1975].) In fact, there is no absolute right to assigned counsel. (See Wills v. City of Troy, 258 A.D.2d 849 [3d Dept 1999], lv to appeal dismissed 94 N.Y.2d 782 [1999].) Rather, it is only when “liberty interests” are at stake that courts are likely to assign counsel in civil cases. (See Planck v.. County of Schenectady, 51 AD3d 1283 [3d Dept 2008].) Such “liberty interests” must raise to the level of “grievous forfeiture of loss of a fundamental right” (see Wills, 258 A.D.2d at 849 [internal citation and quotation omitted] ).
It has been held that keeplock detention does not raise to such level. (See Matter of Shoga v. Broome County Correctional Facility, 24 Misc.3d 1206(A) [Sup Ct, Broome County 2009, Lebous, J.].) Where the petitioner was found guilty of violating prison disciplinary rules, and after an unsuccessful administrative appeal, the inmate filed an article 78 proceeding requesting assigned counsel which was denied by the trial court and affirmed by the Appellate Division, Third Department. (Matter of Hinckson v. Selsky, 259 A.D.2d 812 [3d Dept 1999].) Given this precedent and the similarity to this case, and after a careful review of the application finding a lack of “grievous forfeiture of loss of a fundamental right[,]” the Court denies Petitioner's request for assigned counsel.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Petitioner's request for assigned counsel is DENIED, and Petitioner is directed to serve the Order to Show Cause as required therein.
This constitutes the Decision and Order of the Court. Please note that the original of this Decision and Order along with the original papers are being filed by Chambers with the County Clerk. The requirements of CPLR R. 2220 are excused.