New York State Court of Claims

New York State Court of Claims

ROSE v. THE STATE OF NEW YORK, #2002-015-250, Claim No. 100012, Motion No. M-65120


Synopsis


Claimant's poor person application denied for failure to serve copy on appropriate county attorney. Request for assignment of counsel on his loss of property claim likewise denied on basis of Matter of Smiley, 36 NY2d 433.

Case Information

UID:
2002-015-250
Claimant(s):
NATE ROSE
Claimant short name:
ROSE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100012
Motion number(s):
M-65120
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Nate Rose, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel Marmelstein, Esquire
Assistant Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
May 6, 2002
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. The claim filed March 18, 1999 seeks to recover money damages for the loss of personal property in the course of claimant's transfer from Mid-State Correctional Facility to Auburn Correctional Facility on September 18, 1998.

Claimant's application must be denied since he failed to allege in his supporting affidavit 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 (Wills v City of Troy, 258 AD2d 849, lv to appeal dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.


May 6, 2002
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 April 22, 2002;
  2. Affidavit of Nate Rose sworn to April 22, 2002.