New York State Court of Claims

New York State Court of Claims

DEKOSKIE v. THE STATE OF NEW YORK, #2002-005-561, Claim No. 106661, Motion No. M-65953


Synopsis


Claimant's motion for poor person status and appointment of an attorney is denied.

Case Information

UID:
2002-005-561
Claimant(s):
JOHN DEKOSKIE
Claimant short name:
DEKOSKIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106661
Motion number(s):
M-65953
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
John Dekoskie,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On November 13, 2002, the following papers, numbered 1 to 4, were read on motion by Claimant for poor person status and appointment of an attorney:

1, 2 Petition to Proceed as a Poor Person, Affidavit
  1. Letter from Defendant dated October 29, 2002
  2. Filed Paper: Claim
Upon the foregoing papers, this motion is denied.

Claimant seeks permission to proceed as a poor person. Claimant has already had imposed a reduced filing fee herein pursuant to CPLR 1101(f) by Judge Richard E. Sise on October 8, 2002, but there are no other costs necessary to prosecute a claim in the Court of Claims, and thus no other privileges are available under CPLR article 11. To the extent that this motion seeks the appointment of counsel to represent the Claimant, relief that is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273), it is denied.

For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for Defendant's alleged negligence related to a fall from a top bunk at Five Points Correctional Facility, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra).

The Defendant wrote to the Court indicating that it had never received the instant motion papers, even though the motion papers contain an affidavit of service. Given the denial of this motion, that issue becomes moot. Furthermore, Claimant has failed to demonstrate that he served a copy of this motion upon the County Attorney as required by CPLR 1101(c), (see, Bowman v State of New York, 229 AD2d 1024).

For the reasons noted, the motion for poor person status is denied.


February 14, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims