New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, et als, #2002-031-044, Claim No. 105954, Motion No. M-65273


Synopsis


Claimant's request to proceed as a poor person and for assignment of counsel in medical malpractice/negligence claim denied.

Case Information

UID:
2002-031-044
Claimant(s):
CARMEN RUSSO
Claimant short name:
RUSSO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105954
Motion number(s):
M-65273
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CARMEN RUSSO, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 23, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 6, were read on motion by Claimant for permission to proceed as poor person and for appointment of counsel:
1) Notice of motion, filed April 23, 2002;
2) Affidavit of Carmen Russo, sworn to April 16, 2002;
3) Affidavit of William D. Lonergan, Esq., sworn to June 6, 2002;
4) Affidavit of Frederick Attea, Esq., sworn to June 25, 2002;
5) Order of the Honorable Susan Phillips Read, filed May 7, 2002;
6) Reply affidavit of Carmen Russo, sworn to June 8, 2002. This is Claimant's motion seeking permission to proceed as a poor person and for appointment of counsel to represent him in the preparation and trial of this matter. The claim, filed April 23, 2002, seeks to recover damages for personal injuries arising from the alleged medical malpractice and medical negligence of several Department of Correctional Services employees between the dates of February 14, 2001 and September 28, 2001. Claimant seeks damages in the amount of $2,000,000.00 for his injuries.

In this motion pursuant to Civil Practice Law and Rules (CPLR) §1101, Claimant seeks permission to proceed as a "poor" person and for appointment of counsel. Both the State and the County of Erie have opposed Claimant's application as it relates to the request for poor person status, both asserting that Claimant has failed to demonstrate the need for the relief requested. The State also opposes Claimant's request for assignment of counsel.

To the extent that Claimant's motion is addressed to the Court's filing fee, that issue has already been resolved by the Honorable Susan Phillips Read in an Order file-stamped May 7, 2002. Since there are no other costs or fees required by the Court of Claims to prosecute a claim, the Claimant's motion to proceed as a poor person is denied.

With regard to Claimant's 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). I have examined the underlying claim and find that this matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see Matter of Smiley, supra; Matter of St. Luke's-Roosevelt Hosp. Ctr., 159 Misc 2d 932, 936, mod and remanded, 215 AD2d 337).

Based on the foregoing, it is;

ORDERED, Claimant's motion for permission to proceed as a poor person and for the assignment of counsel to represent him in this matter is denied.


September 23, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims