New York State Court of Claims

New York State Court of Claims

CANDELARIA v. THE STATE OF NEW YORK, #2000-004-539, Claim No. 102911, Motion No. M-62548


Synopsis



Case Information

UID:
2000-004-539
Claimant(s):
JUAN CANDELARIA
Claimant short name:
CANDELARIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102911
Motion number(s):
M-62548
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
JUAN CANDELARIA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Earl F. Gialanella Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 9, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to proceed as a poor person and for assignment of counsel,

pursuant to CPLR §§ 1101 and 1102.


The following papers were considered by the Court:
Claim, filed August 14, 2000 1
Order of Judge Susan Philips Read, filed August 29, 2000 2
Order of Judge Susan Philips Read, filed September 19, 2000 3
Petition of Juan Candelaria, filed August 14, 2000 4
Affirmation of Service of motion, sworn to July 6, 2000 5

Affirmation of Earl F. Gialanella, AAG in opposition to
motion, filed October 31, 2000 6

Response to Defendant's Interrogatories of September 12,
2000, filed September 28, 2000 7

Claimant's Response to Discovery and Inspection, filed
September 28, 2000 8
Claimant's Bill of Particulars, filed September 28, 2000 9

Claimant seeks permission to proceed as a poor person pursuant to CPLR §§1101 and 1102.

The filing fee requirements of Court of Claims Act §11 - a (1) require a Claimant seeking poor person status to apply for a reduction in the filing fee pursuant to CPLR § 1101 (f). Claimant applied for a reduction and the filing fee was set at $20.00. (Paper Nos. 2 and 3)[1]

The Claimant served his motion papers on the Attorney General who responded in an affirmation in opposition (Papers No. 5 and 6). It does not appear from Claimant's affidavit of service that the Chemung County Attorney was served with the motion papers as is required since, when the claim accrued, Claimant was incarcerated at the Elmira Correctional Facility (CPLR §1101 [c]). Failure to served the Chemung County Attorney requires that Claimant's application be denied.

Even if Claimant's application had been properly served, it would still be denied for the reasons set forth below.

Other than the filing fee, there are no costs in the Court of Claims. Thus, the only remaining relief requested and authorized by CPLR §1102 is the assignment of counsel.

A reading of the Claim shows that Claimant is not illiterate and is able to express himself clearly. (Paper No. 1) This view is further supported by Claimant's promptly submitted responses to the defendant's demands. (Papers Nos. 7, 8 and 9)

The Claim sets forth six categories of "Acts and Omissions" which range from property loss to alleged indifference and lack of proper attention to Claimant's physical and medical needs (Paper No. 1). In general, the allegations set forth in the Claim, other than the property loss claim, would more properly be the subject of an inmate grievance administrative review and/or an Article 78 proceeding.

Assignment of counsel is not an absolute right in civil litigation and the decision whether or not to assign counsel lies within the discretion of the Court. In making its decision herein, the Court finds that the issues presented in the Claim are not so complex that they require counsel, nor do they involve such fundamental rights as would justify a court appointing an attorney to appear without compensation. (Matter of Smiley, 36 NY2d 433).

In light of the foregoing, it is

ORDERED that Motion No. M-62548 is DENIED.


November 9, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Whether or not CPLR §1101(f) is unconstitutional (see, Gomez v Evangelista, Supreme Court New York County, Goodman, J.S.C., filed September 11, 2000) has no direct bearing on the result herein. If it is, Claimant need pay no filing fee. If it is not, the filing fee has been fixed with Claimant's financial circumstances in mind.