New York State Court of Claims

New York State Court of Claims

WISZNIESKI v. STATE OF NEW YORK, #2000-006-803, Claim No. 103071, Motion No. M-62546


Synopsis

Poor person - denied

Case Information

UID:
2000-006-803
Claimant(s):
LESZEK WISZNIESKI
Claimant short name:
WISZNIESKI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103071
Motion number(s):
M-62546
Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
LESZEK WISZNIESKI, PRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion for an order of this court granting him permission to proceed as a poor person and for the assignment of counsel pursuant to CPLR §§ 1101 and 1102. In deciding this motion the court has read and reviewed the following papers:
  1. Claimant combined notice of motion and affidavit sworn to September 11, 2000 and filed September 14, 2000 in support of the motion.
  1. Affidavit of Paul Volcy, Esq., Assistant Attorney General, sworn to October 11, 2000 and filed October 13, 2000 in opposition to the motion
  1. Claim verified September 11, 2000 and filed September 14, 2000.
  1. Order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed October 3, 2000.

This claim arose on August 24, 2000 while claimant was an inmate at Gowanda Correctional Facility. Claimant alleges he slipped and fell on a wet floor in the bathroom of his unit. As a result of this fall, claimant states he suffered a broken finger, along with injuries to his right shoulder, arm and leg. Claimant maintains the defendant was negligent in failing to adequately maintain the area in which he fell.

By this motion, claimant states he is unable to pay the costs, fees and expenses necessary to pursue his claim. The issue of the costs and fees associated with filing a claim in the Court of Claims has already been resolved by the order of Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed October 3, 2000. In that order, claimant's filing fee was set at $15.00 with no initial payment of the reduced fee required.

The court has reviewed claimant's affidavit to proceed as a poor person, and finds it to be without merit. The only remaining costs and expenses to claimant associated with filing, serving and pursuing a claim consist of postage and, perhaps, photocopying expenses. The claimant alleges in his affidavit that his wages are $20.00 per month, which should be more than adequate to cover the cost of postage and reproduction associated with bringing a claim in the Court of Claims. The court is also aware that the defendant provides five free first-class stamps to inmates weekly and will advance an inmate up to $20 for legal mail postage, if the inmate has insufficient funds (7 NYCRR 720.8[b][c]; 721.4[a]; 721.5[a]). In the event an inmate is unable to afford the cost of photocopying, it would not be unreasonable for an inmate to transcribe by hand multiple copies of his/her notice of intention to file claim and/or claim and other related papers for the purpose of filing and serving same.

Claimant has not set forth any specific facts as to the attempts he has made to obtain counsel on his own behalf or any attempts he may have made to seek aid from the various legal services available to prisoners. Furthermore, it does not appear to the court that it would be justified in exercising its discretion in appointing counsel for the claimant. Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273.

Accordingly it is,

ORDERED, that the motion of the claimant to proceed as a poor person and for the assignment of counsel is hereby DENIED.


November 15, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims