Claimant brings this motion for an order waiving his right to appear in person
at the trial
and granting him poor person relief pursuant to Article 11 of the CPLR. The
considered the following documents in determining the motion:
Affidavit of Darryl Harris in support for waiving Claimant's
Affidavit of Darryl Harris in support of poor person application.......3
Defendant submitted no opposition to the motion. Claimant seeks permission
from the Court to not appear at the trial of this claim. Claimant bases his
request upon his experience appearing for the trial of another claim. In his
motion papers, Claimant explains that in appearing for trial on claim number
97709, he was transported to other facilities, not provided his "overnight court
bag" which in addition to his clothes, contained the necessary court documents
to prove his case, he was harassed and verbally abused by correction officers at
other facilities, fed only cold meals, and kept away from the facility where he
is currently regularly housed for 10 ½ days. Claimant wishes to avoid such
"cruel and unusual punishment" again. (Harris affidavit ¶ 4, page 3)
The Court does not require that the claimant appear for trial in a civil case.
By not appearing, Claimant risks dismissal of his claim, since sufficient
evidence must be introduced to establish a prima facie case. Claimant is
currently proceeding pro se, without his appearance at trial there would
be no one to present evidence; and furthermore, based upon the allegations in
the claim it is unlikely Claimant could be successful in proving his case if he
fails to testify.
As for Claimant's request for poor person relief, this portion of the motion
must also be denied. The benefits of being granted permission to proceed as a
poor person are set forth in CPLR 1102, which include the assignment of
counsel, relief from the payment of costs and fees, and where permission to
appeal by order has been granted a stenographic transcript and permission to
submit typewritten appellate briefs and appendices.
The Court notes initially that Claimant's application is insufficient.
Claimant has failed to set forth in his poor person application the nature of
the action and sufficient facts for the Court to determine the merit of the
claim as required by CPLR 1101(a). However, this would not be fatal to the
motion since the necessary information was provided in the verified claim
previously filed with the Clerk of the Court, upon which the Court can rely to
determine the application. (See, Standley v State of New York, Ct. of
Cl., J. McNamara, filed March 7, 1997, Claim No. 95051, Motion No. M-54570.)
CPLR 1101(c) requires that a copy of the notice of motion must be served upon
the County Attorney in the county in which the action is triable. Claimant has
not submitted any affidavit of service indicating that the County Attorney was
served. The motion can be denied on this ground alone. (See, Bowman v State
of New York 229 AD2d 1024.) However, even if the County Attorney had been
served Claimant's motion would still be denied.
In this Court, for all claims filed prior to December 7,
no fees or costs are required to
prosecute an action. Claimant's claim was filed with the Clerk of the Court on
January 14, 1997. Therefore the only relief Claimant can be seeking is the
assignment of counsel.
The appointment of counsel in this type of case, which is for personal injuries
as a result of the State's alleged medical malpractice, is not required by the
constitution or by statute; it is discretionary. (See, Matter of
Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273)
This is the type of claim that attorneys often accept for a contingency fee,
thus claimant may be able to obtain counsel without incurring any up-front
attorneys fees. Accordingly, the Court will not exercise its discretion to
appoint an attorney to appear without compensation in this matter.
Based upon the foregoing, Claimant's motion is DENIED in its entirety.