Claimant brings a motion seeking to proceed as a poor person in accordance with
1102. The Court has considered the following documents in determining this
Affidavit of Juan C. Fernandez Pajardo, a/k/a Jose Fernandez in
Affirmation of Joel L. Marmelstein, Esquire,
Assistant Attorney General in
Claimant brings this motion seeking an order granting him the privilege of poor
person status pursuant to CPLR 1102.
Specifically Claimant seeks appointment of an attorney.
Defendant, in opposition to this motion, advises that it was never served with
a copy of the motion papers; and in fact, was never served with a copy of the
claim. Defendant learned that a motion had been scheduled from general
correspondence received from the Chief Clerk of the Court of Claims. A review
of Claimant's affidavit of service for the motion indicates that Claimant served
a copy of the motion on the State of New York with no address and no reference
to the Attorney General. Instead, Claimant's affidavit of service indicates
that he is awaiting a response from David B. Klingaman, who is the Chief Clerk
of the Court of Claims.
Defendant served a copy of his responding affirmation upon the Claimant on
November 3, 2000, placing Claimant on notice that Defendant was alleging the
failure of service. There is no indication that Claimant served a copy of the
motion on Defendant thereafter.
Since it appears that Claimant failed to properly serve a copy of the motion
upon the Attorney General the Court could decline to entertain the motion.
However, despite not actually seeing the motion papers, Defendant submitted an
adequate response and accordingly the Court will address the motion.
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). Furthermore, CPLR 1101(c) requires that a
copy of the ntoice 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
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)
In this case, Claimant may be able to obtain an attorney to represent him on a
contingency fee basis.
Based upon the foregoing, Claimant's motion is DENIED.