New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2001-015-115, Claim No. 103148, Motion No. M-62634


Synopsis


Application to proceed as poor person denied for failure to notify Albany County Attorney. Application for assignment of counsel likewise denied where claimant failed to allege loss of fundamental right or grievous forfeiture in the claim.

Case Information

UID:
2001-015-115
Claimant(s):
JOHN T. THOMPSON, JR.
Claimant short name:
THOMPSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103148
Motion number(s):
M-62634
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
John T. Thompson, Jr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: No AppearanceAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 9, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The application of the claimant for an order pursuant to CPLR 1101 and 1102 permitting him to proceed as a poor person and appointing an attorney to represent him without fee is denied. By order dated October 17, 2000 Presiding Judge Susan Phillips Read granted that portion of the application which sought reduction of the filing fee required by Court of Claims Act § 11-a(1). This claim sounds in legal malpractice and alleged conflict of interest on the part of an attorney hired by claimant's mother to represent him on a charge of driving while intoxicated while said attorney was employed by the municipality in which the arrest occurred. The claim fails to state the relief claimant is seeking.

The application for permission to proceed as a poor person must be denied because claimant's motion papers fail to demonstrate that it was served upon the Albany County Attorney. Failure to serve a county attorney as required by CPLR 1101(c) is a basis for denying a motion for permission to proceed as a poor person (Bowman v State of New York, 229 AD2d 1024; Harris v State of New York, 100 Misc 2d 1015, 1017). Service of the motion papers upon the "Law Department, Capitol Building, Albany, NY" as evidenced by claimant's affidavit of service sworn to the 18th day of September, 2000 does not constitute service upon the Albany County Attorney.

Claimant's application for the assignment of an attorney is likewise denied. The Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv to app dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


January 9, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Affidavit of John Thompson, Jr. in support of application for waiver or reduction of filing fee/poor person relief sworn to September 18, 2000;
  2. Order of Presiding Judge Susan Phillips Read dated October 17, 2000;
  3. Claim filed on September 28, 2000.