New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2002-028-001, Claim No. 104926, Motion No. M-64155


Synopsis


Claimant's application for poor person status and assignment of counsel in bailment claim seeking $102.06 in damages is denied.

Case Information

UID:
2002-028-001
Claimant(s):
ANTHONY WRIGHT
Claimant short name:
WRIGHT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104926
Motion number(s):
M-64155
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ANTHONY WRIGHT, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Eileen E. Bryant, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 8, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's application pursuant to CPLR 1101 for poor person status and assignment of counsel:

  1. Notice of Motion and Supporting Affidavit of Anthony Wright, sworn to September 12, 2001 (Wright Affidavit);
  1. Affirmation in Opposition of AAG Eileen E. Bryant affirmed November 2, 2001

Filed Papers: Verified Claim, filed September 20, 2001; Verified Answer filed

October 19, 2001; Decision and Order, Read, PJ filed October 3, 2001.


An Order has previously been issued reducing the filing fee for this Claimant to $20.00. (Wright v State of New York, Ct Cl., October 3, 2001, Read, P.J., Claim No. 104926). This decision addresses the remaining issue of Claimant's request for assigned counsel and poor person status. Claimant alleges he has no income because he is temporarily "in the box", no property and that no other person is beneficially interested in the recovery sought. Claimant does not indicate any attempts to obtain counsel on his own behalf or via various legal services.

CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (see, CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective. Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc2d 1015, 1016.

Claimant's affidavit of service establishes that the moving papers were only served upon the attorney general, albeit twice, once in Albany and once in Buffalo. Claimant's mailing to Buffalo was addressed to the "Attorney General Washington County" an apparent attempt to comply with the service requirements of CPLR 1101(c)[1]. However, Washington County, and its County Attorney's office[2], are located east of the Hudson River, not in Buffalo. As such, the claimant has failed to comply with the requirements of the statute, making his application defective. The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney, the application would nevertheless be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see, Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
to app dismissed 93 NY2d 1000; Pittman v State of New York,, Claim No. 101942, Motion No. M-61372, UID#2000-019-511, Collins, J., April, 18, 2000) A review of the pleadings reveals this case to be a standard bailment claim with damages alleged to be $102.06 and, as such, fails to rise to the level warranting assignment of counsel. Similarly without merit is Claimant's request that he not pay the costs and fees associated with the prosecution of this action. Inasmuch as the filing fee has been addressed, the prosecution of this matter in this court does not require the Claimant to pay any costs or fees. To the extent Claimant must mail pleadings to the Court and the Defendant, as correctly pointed out by the Attorney General in opposition to the motion, the Defendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds (Bryant Affidavit, ¶ 3; see also, Robbins v State of New York, Claim No. 102325, Motion No. M -62803, UID#2000-006-962, NeMoyer, J., January 9, 2001). Consequently, claimant's motion for an order granting him poor person status and for the assignment of counsel must be denied.

Based upon the foregoing, the motion is DENIED.

January 8, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Claimant resided at the Great Meadow Correctional Facility, Comstock, Washington County, New York at the time he filed the Claim.
[2] The County Attorney's office is located in Fort Edward, New York.