New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-015-120, Claim No. 103284, Motion No. M-62712


Synopsis


Poor person application denied where claimant failed to demonstrate service of the motion on appropriate county attorney. Claimant's application for assignment of counsel denied upon claimant's failure to demonstrate that case involves grievous forfeiture or loss of a fundamental right.

Case Information

UID:
2001-015-120
Claimant(s):
ANTONIO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103284
Motion number(s):
M-62712
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 23, 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 November 9, 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 by an inmate seeks to recover money damages for personal injuries sustained by claimant as a result of an alleged assault and battery by named and unnamed correction officers at the Oneida Correctional Facility on August 28, 2000 as well as another, separate assault by unnamed correction officers on August 29, 2000.

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 Oneida County Attorney. Failure to serve a county attorney as required by CPLR §1101(c) is a proper 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 19th day of October, 2000 does not constitute service upon the Oneida County Attorney. Claimant acknowledged such failure of service in his unsworn statement dated December 1, 2000 submitted in reply to the defendant's opposition to claimant's motion.

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 23, 2001
Saratoga Springs, New York

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


The Court considered the following papers.
  1. Notice of motion dated October 19, 2000;
  1. Affidavit of Antonio Brown in support of application for waiver or reduction of filing fee/poor person relief sworn to October 19, 20 [sic];
  2. Order of Presiding Judge Susan Phillips Read dated November 9, 2000;
  3. Claim filed on October 26, 2000.