New York State Court of Claims

New York State Court of Claims

CRESPO v. STATE OF NEW YORK, #2002-018-181, Claim No. 103721, Motion No. M-65571


Synopsis


Claimant's motion for poor person relief is denied.

Case Information

UID:
2002-018-181
Claimant(s):
DIONISIO CRESPO
Claimant short name:
CRESPO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103721
Motion number(s):
M-65571
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
DIONISIO CRESPO
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 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.

Claimant seeks permission to proceed as a poor person. 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 is provided and permission to submit typewritten appellate briefs and appendices is allowed. The portion of claimant's motion seeking relief from the payment of costs and fees has been addressed by separate order of the Hon. Susan Phillips Read, Presiding Judge of the Court of Claims, dated and filed February 9, 2001. This decision will address the balance of claimant's motion, assignment of counsel.

The appointment of counsel in this type of case, which is for personal injuries as a result of the State's alleged 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). 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; Courtwright v State of New York, Ct. of Claims filed March 20, 1997, J. Corbett, Claim No. 95042, Motion No. M-54516). However, claimant may be able to obtain an attorney to represent him on a contingency fee basis.

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.


November 13, 2002
Syracuse, New York

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


The Court has considered the following documents in determining the


motion:


Notice of Motion......................................................................................1


Affidavit of Dionisio Crespo in support of poor person application............2


Filed Documents:


Claim...........................................................................................3


Defendant submitted no opposition to the motion.