New York State Court of Claims

New York State Court of Claims

CONSEILLANT v. THE STATE OF NEW YORK, #2000-013-008, Claim No. 102017, Motion No. M-61464


Synopsis


Claimant's motion for permission to proceed as a poor person and for appointment of counsel is denied.

Case Information

UID:
2000-013-008
Claimant(s):
FRANK CONSEILLANT
Claimant short name:
CONSEILLANT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102017
Motion number(s):
M-61464
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
FRANK CONSEILLANT, Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES E. SHOEMAKER, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 9, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On April 19, 2000, the following papers were read in connection with Claimant's poor person application:

1. Notice of Motion

2. Petition to Proceed In Forma Pauperis

3. Affirmation in Opposition

4. Claim

Claimant is an inmate incarcerated at the Southport Correctional Facility (Southport). He seeks damages in this action for injuries he received when he was allegedly assaulted by a correction officer in the Southport draft room. In this motion, he seeks permission to proceed as a poor person and to have an attorney appointed to represent him. Defendant opposes Claimant's application.

Upon review of the record, I must deny Claimant's motion.

To the extent that Claimant seeks a reduction in the fees associated with filing a claim in the Court of Claims (see, Court of Claims Act §11[a][1]), the Presiding Judge has ruled on that request by Order filed on April 3, 2000 (see, CPLR 1101[f]). There are no other fees or costs associated with prosecuting a claim in the Court of Claims. Thus, that portion of Claimant's motion seeking a waiver of fees and costs is unnecessary (see, CPLR 1101[d]).

I do have the authority to appoint counsel to prosecute civil claims, but that relief is discretionary and, in my view, not warranted here (CPLR 1102[a]; Matter of Smiley, 36 NY2d 433; Matter of Hinckson v Selsky, 259 AD2d 812, lv dismissed 94 NY2d 782; Stephens v State of New York, 93 Misc 2d 273). In exercising my discretion not to appoint counsel, I note that this is a straightforward claim and that Claimant has not shown that he has made any efforts to secure the services of a private attorney on a contingency fee basis.

Finally, I must deny Claimant's motion because it is procedurally defective. Claimant has not provided the Court with proof that he served his application upon the County Attorney in the county in which the action is triable (see, CPLR 1101[c]).


June 9, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims