New York State Court of Claims

New York State Court of Claims

MAILEY v. THE STATE OF NEW YORK, #2000-009-437, Claim No. 102634, Motion No. M-62018


Synopsis


Claimant's poor person application denied.

Case Information

UID:
2000-009-437
Claimant(s):
DAVID M. MAILEY
Claimant short name:
MAILEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102634
Motion number(s):
M-62018
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
DAVID M. MAILEY, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Carla T. Rutigliano, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 13, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to proceed as a poor person.


The following papers were considered by the Court in connection with this motion:

Petition, Affidavit 1,2


Affirmation in Opposition 3

Rebuttal, with Exhibits 4


Filed Papers: Claim

Claimant has not submitted any proof that this motion was served upon the appropriate county attorney as required by statute (see, CPLR § 1101[c]). Failure to serve a county attorney is, in and of itself, a basis for denial of the requested relief (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

Despite this defect in the motion papers, the Court will nevertheless address the merits of claimant's application.

The portion of the application requesting a waiver of the filing fee pursuant to Court of Claims Act, § 11-a(1) has already been addressed by an order of Presiding Judge Susan Phillips Read dated July 3, 2000.

Since there are no other costs in this Court, the only relief available under CPLR § 1102 that claimant can be seeking is the assignment of an attorney, who would serve without compensation. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). A review of the allegations of this claim establishes that this case does not warrant the exercise of discretion in assigning counsel under the standards of Matter of Smiley, supra.

Accordingly, notwithstanding the technical defect in this motion, claimant's request to be granted poor person status has been considered on the merits and is hereby DENIED.


November 13, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims