New York State Court of Claims

New York State Court of Claims

FAJARDO v. STATE OF NEW YORK, #2001-018-067, Claim No. 102981, Motion No. M-62549


Synopsis


Claimant's motion for the appointment of counsel is denied.

Case Information

UID:
2001-018-067
Claimant(s):
JUAN C. FERNANDEZ-FAJARDO
Claimant short name:
FAJARDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102981
Motion number(s):
M-62549
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JUAN C. FERNANDEZ-FAJARDOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion seeking to proceed as a poor person in accordance with CPLR


1102. The Court has considered the following documents in determining this motion:


Affidavit of Juan C. Fernandez Pajardo, a/k/a Jose Fernandez in support......1


Affirmation of Joel L. Marmelstein, Esquire,

Assistant Attorney General in opposition............................................2

Claimant brings this motion seeking an order granting him the privilege of poor person status pursuant to CPLR 1102.[1] 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 1024.)

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.


March 1, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Claimant also sought poor person relief in the form of a waiver of the filing fee. This issue was resolved by Order of the Honorable Susan Phillips Read, Presiding Judge of the Court Claims, filed with the Clerk of the Court on September 15, 2000.