New York State Court of Claims

New York State Court of Claims

LUMPKIN v. THE STATE OF NEW YORK, #2001-015-204, Claim No. 104809, Motion No. M-64050


Synopsis


Poor person application denied for failure to allege facts from which potential merit of claim could be determined and for failure to serve copy of the application upon the appropriate county attorney

Case Information

UID:
2001-015-204
Claimant(s):
KENNETH LUMPKIN
Claimant short name:
LUMPKIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104809
Motion number(s):
M-64050
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Kenneth Lumpkin, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
November 27, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant's application pursuant to CPLR 1101 and 1102 for poor person relief and for the assignment of counsel to pursue his claim is denied[1]. The claim filed August 27, 2001seeks to recover money damages for the loss of certain items of personal property valued at $236.70 which the claimant alleges were missing from bags shipped from Marcy Correctional Facility (Marcy) to Mid-State Correctional Facility (Mid-State). Claimant discovered the loss upon being released from the Special Housing Unit at Mid-State on February 1, 2001.

Claimant's application must be denied since he failed to allege in his affidavit in support of the motion any facts from which the merits of his claim might be ascertained (CPLR 1101 (a); Matter of Teeter v Reed, 57 AD2d 735). Additionally claimant offered no proof that the application was served upon the Oneida County Attorney as required by statute (CPLR 1101 (c)). Failure to serve a county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

As to the request for assignment of counsel, 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 (Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


November 27, 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 August 20, 2001;
  2. Affidavit of Kenneth Lumpkin sworn to August 3, 2001.

[1]By order dated September 11, 2001 Presiding Judge Susan Phillips Read granted a reduction of the filing fee required by Court of Claims Act § 11-a(1) to $40.00.