New York State Court of Claims

New York State Court of Claims

NEAL v. STATE OF NEW YORK, #2002-018-177 , Claim No. 106248-A, Motion No. M-65511


Synopsis


Claimant's motion request for assignment of counsel is denied.

Case Information

UID:
2002-018-177
Claimant(s):
CHRISTOPHER NEAL
Claimant short name:
NEAL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106248-A
Motion number(s):
M-65511
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
CHRISTOPHER NEALPRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
BY: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 31, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant brings this motion for an order granting him poor person relief pursuant to


Article 11 of the CPLR. Defendant opposes the motion.

The benefits of being granted permission to proceed as a poor person are set forth in CPLR 1102, which include the assignment of counsel, relief from the payment of costs and fees, and where permission to appeal by order has been granted, a stenographic transcript and permission to submit typewritten appellate briefs and appendices. The portion of claimant's motion seeking relief from the payment of costs and fees has been addressed by separate order of the Honorable Susan Phillips Read, Presiding Judge of the Court of Claims, dated July 9, 2002, and filed July 11, 2002. This decision will address the balance of claimant's motion, assignment of counsel.

The appointment of counsel in a bailment case for loss of personal property 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). After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (See, Matter of Smiley, supra; Standley v State of New York, Ct Cl unpublished decision of J. McNamara, filed March 7, 1997, Claim No. 95051, Motion No. M-54570).
Claimant has also failed to comply with the requirements of CPLR 1101(c) which directs that a copy of the notice of motion must be served upon the County Attorney in the county in which the action is triable. The affidavit of service claimant submitted does not indicate 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).
Based upon the foregoing, claimant's motion is DENIED in its entirety.


October 31, 2002
Syracuse, New York

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


The Court considered the following in deciding this motion:

Notice of motion...........................................................................................1

Affidavit of Christopher Neal, in support.......................................................2

Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General, in opposition.........................................................3


Filed Documents:


Claim............................................................................................................4