New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2000-011-547, Claim No. 102079, Motion No. M-61533


Synopsis


Claimant's application for poor person status is denied.

Case Information

UID:
2000-011-547
Claimant(s):
MARVIN HERNANDEZ
Claimant short name:
HERNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102079
Motion number(s):
M-61533
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Marvin J. Hernandez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Saul Aronson, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
July 13, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


In an affidavit submitted in support of the motion, Claimant states that he has no assets, that he is unable to pay the costs, fees and expenses necessary to prosecute the action, that he has no income and that no other person is beneficially interested in the recovery sought. Furthermore, though Claimant does not set forth the nature of the claim on sufficient facts to establish its merit, that information is contained in the verified claim previously filed with the Court. Claimant, however, failed to serve notice of the motion on the County Attorney as required by CPLR 1101(c).

Even assuming that Claimant had properly served the County Attorney, the motion should, nonetheless, be denied.

The statute provides that a party granted poor person status shall not be liable for the payment of any costs or fees unless a recovery is had in his favor (CPLR 1102[d]). In addition, the Court may, in its discretion, assign an attorney to represent the indigent party (CPLR 1102[a]) but, except where the litigation has reached the stage of appellate review, that is the limit of the privileges to which a person might be entitled under the statute.

The portion of the application requesting waiver of the filing fee in this court has already been resolved. Accordingly, appointment of an attorney is the only issue remaining.

The claim which is based upon an allegation of negligence, is the type of claim generally handled by attorneys on a contingent fee basis so that Claimant's indigence is not an obstacle to obtaining legal counsel. The request for appointed counsel would, therefore, be denied and, inasmuch as no benefit would accrue to Claimant, the motion would be denied.

July 13, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

  1. Notice of Petition sworn to the 11th day of February, 1999.
  2. Affirmation in Opposition of Saul Aronson, Esq., dated May 8, 2000.