Opinion
# 2013-041-014 Claim No. 115977 Motion No. M-83050
03-14-2013
MALIK AZ'RAEL MOSBY v. THE STATE OF NEW YORK
Synopsis
Claimant's application for disclosure of material prepared for litigation and for appointment of counsel and of a medical expert, without charge to claimant, is denied. Case information
UID: 2013-041-014 Claimant(s): MALIK AZ'RAEL MOSBY Claimant short name: MOSBY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115977 Motion number(s): M-83050 Cross-motion number(s): Judge: Frank P. Milano MALIK AZ'RAEL MOSBY Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Douglas R. Kemp, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 14, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for an order "to obtain certain material prepared for litigation or trial" and further requests "assignment of counsel" and the "testimony of an expert in pharmaceuticals." The claim, pending since October 20, 2008, is scheduled for trial on April 11, 2013, approximately one month after the return date of the motion.
Defendant opposes claimant's request for litigation/trial materials.
Claimant's motion is, in all respects, denied.
With respect to claimant's request that he be provided material prepared for litigation, "the privilege attached to material prepared for litigation is conditional, with the possibility of a party being required to disclose it, even if the privilege is not waived, if the other party has substantial need of it and withholding the document would result in undue hardship (see CPLR 3101 [d] [2])" (Fernekes v Catskill Regional Medical Center, 75 AD3d 959, 961 [3d Dept 2010]). Claimant has shown neither substantial need nor undue hardship.
Claimant asserts that "a great deal of [his] legal documents have been subject to loss and misappropriation." Claimant may request a copy of his litigation file from the Clerk of the Court of Claims.
With respect to the balance of claimant's application, CPLR § 1102 defines the "Privileges of [a] poor person" and makes no provision for the court-ordered appointment of a medical expert to serve without compensation, or to serve on the basis of compensation provided by the state or county.
In Carter v County of Erie (255 AD2d 984, 985 [4th Dept 1998], lv denied 689 NYS2d 596 [4th Dept 1999]), the court held that while a person granted poor person status "is entitled to those benefits conferred by CPLR 1102, including copies of transcripts of hearings and trials at government expense .... The [lower] court properly rejected the contention of plaintiff that Erie County must bear the cost of deposition transcripts provided to her and must pay her expert witness fees and similar extraordinary expenses."
Further, County Law § 722-c, which authorizes compensation of investigative, expert or other necessary services for persons accused of crimes or parties before the Family or Surrogate's Courts, provides no basis to order a county to pay for an expert medical witness in a personal injury lawsuit.
With respect to the State of New York, Gittens v State of New York (175 AD2d 530, 530-531 [3d Dept 1991]), instructs that:
"There is no general provision which requires the State to pay the litigation expenses in claims brought against it. Court of Claims Act § 27 specifically provides that, except in instances not here present, 'costs, witnesses' fees and disbursements shall not be taxed ... by the court to any party'. Moreover, claimant is an inmate in a State correctional facility subject to a sentence of imprisonment. Civil Rights Law § 79 (3) and § 79-a (3) specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted."
These principles were reiterated in Matter of Brown v State of New York (6 AD3d 756 [3d Dept 2004]), which held that prison officials were under no obligation to provide "information and recording equipment for use in conducting depositions of nonparties in a civil action pending in federal court."
The court, in Brown, denied the prisoner's request even though the prisoner had been designated a poor person in the federal court action and had obtained an order from the federal court permitting him to conduct telephonic depositions. The court found that the prisoner had not tendered payment for the requested recording equipment and that the prisoner did not "offer any basis for his claim that [the federal] court order obligated state prison officials to assist him by providing the requested equipment, particularly since the state generally is not required to perform any services related to prison inmate litigation" (Brown, 6 AD3d at 757).
Further, this is not a proper case for appointment of a medical expert since claimant apparently seeks money damages for personal injuries allegedly caused by defendant's negligence and/or medical malpractice. Such cases are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis. Litigation expenses such as the cost of expert medical testimony are generally advanced by the private attorney.
Claimant also seeks appointment of an attorney to represent him without charge. While it is "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" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 [1975]; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant seeks money damages for personal injuries allegedly caused by defendant's negligence and/or medical malpractice. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.
Claimant has not shown that a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau, 148 Misc 2d at 903) exists if he proceeds without assigned counsel.
Finally, although claimant asserts that he "has some difficulty recollecting information in short term and long term dispersion," references memory loss and indicates that he has endured migraine headaches, there has been no proof offered that claimant has been declared incompetent. It is well-settled that a "person not judicially declared incompetent may sue or be sued just as other members of the community" (Keown v Wright, 89 AD2d 932 [3d Dept 1982]). To the contrary, claimant's motion papers are written in a clear and concise manner and evidence an ability to competently prosecute the allegations of his claim.
Claimant's motion for an order requiring disclosure of material prepared for litigation and for appointment of a medical expert and for counsel to represent him, without payment of any fee by claimant, is denied.
March 14, 2013
Albany, New York
Frank P. Milano
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion (M-83050), filed February 27, 2013;
2. Affidavit and Addendum of Malik Az'Rael Mosby, sworn to February 23, 2013;
3. Affirmation in Opposition of Douglas R. Kemp, dated March 8, 2013.