New York State Court of Claims

New York State Court of Claims

MERCADO v. THE STATE OF NEW YORK, #2002-015-273, Claim No. 105818, Motion No. M-65065


Synopsis


Claimant's application for poor person relief and for assignment of counsel in personal property loss action is denied.

Case Information

UID:
2002-015-273
Claimant(s):
ROBERT MERCADO
Claimant short name:
MERCADO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105818
Motion number(s):
M-65065
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Robert Mercado, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
July 7, 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 28, 2002 seeks to recover money damages for the loss of personal property in the course of claimant's transfer from Oneida Correctional Facility to Fishkill Correctional Facility in November 2000.

Claimant has offered no proof that the application herein 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.

July 7, 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 February 28, 2002;
  2. Affidavit of Robert Mercado sworn to February 26, 2002;
  3. Claim No. 105818 filed March 28, 2002