New York State Court of Claims

New York State Court of Claims

McFADDEN v. THE STATE OF NEW YORK, #2002-028-034, Claim No. 105958, Motion No. M-65227


Synopsis


Claimant's application for poor person status is denied.

Case Information

UID:
2002-028-034
Claimant(s):
REGINALD McFADDEN
Claimant short name:
McFADDEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105958
Motion number(s):
M-65227
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
REGINALD McFADDEN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 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 directing the Clerk to serve the Order upon Defendant:

  1. Motion for Poor Person of Reginald McFadden, filed April 24, 2002 (McFadden Motion);
  1. Affirmation in Opposition of AAG Kathleen M. Resnick filed June 10, 2002 (Resnick Affirmation).
Filed Papers: Verified Claim, filed April 24, 2002; Verified Answer filed June 3, 2002; Order, Read, PJ filed May 8, 2002.


An Order has previously been issued reducing the filing fee for this Claimant to $15.00. (McFadden v State of New York, Ct Cl., May 8, 2002, Read, P.J., Claim No. 105958). This decision addresses the remaining issue of Claimant's request for poor person status and for an order directing the Clerk of the Court "to affix index number and serve said order upon defendant"(McFadden Motion, ¶ 4). Claimant alleges that his prison account has a zero balance, he has no other income and "no property, etc." (McFadden Motion ¶ 3). 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 Misc 2d 1015, 1016.

Claimant's affidavit of service establishes that the moving papers were only served upon the attorney general. 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 involve alleged negligent medical treatment, the type of claim which is handled routinely on a contingent fee basis by counsel. As such, this claim does not warrant the Court exercising its discretion and assigning 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, the Defendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds (see, 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 an order directing the Clerk to serve the order must be denied.

Based upon the foregoing, the motion is DENIED.

June 21, 2002
Albany, New York

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