New York State Court of Claims

New York State Court of Claims

MENDEZ v. THE STATE OF NEW YORK, #2002-032-033, Claim No. 106911, Motion No. M-66156


Synopsis



Case Information

UID:
2002-032-033
Claimant(s):
GABRIEL MENDEZ
Claimant short name:
MENDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106911
Motion number(s):
M-66156
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Gabriel Mendez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Frederick H. McGown, III, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
February 21, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks leave to proceed as a poor person pursuant to CPLR 1101. His motion is technically defective. According to a letter received from the Office of the Attorney General, service on the State was not effected and, in addition, the County Attorney for the county in which the claim arose was not served. Nevertheless, the Court will address the substance of his request for relief.
The claim in this action alleges that claimant was given inadequate treatment by the staff of Franklin Correctional Facility and the outside medical facility to which he was referred.
Claimant's request for reduction of the filing fee has already been addressed in the Order of Presiding Judge Susan Phillips Read, issued December 12, 2002. Thus, the only relief available under CPLR 1102 that claimant can be seeking at this juncture is the assignment of an attorney, who would serve without compensation. The appointment of counsel in a case such as this, where there is no threat that claimant is about to be deprived of a liberty or suffer a grievous forfeiture, is neither statutorily nor constitutionally required (Morgenthau v Garcia, 148 Misc 2d 900; Harris v State of New York, Claim No. 80949, Motion No. M-42854, filed Oct. 2, 1990, Benza, J.). Furthermore, this claim does not involve such fundamental rights that the Court would be justified in exercising its discretion to appoint an attorney to appear without compensation (see, Matter of Smiley, 36 NY2d 433; Jacox v Jacox, 43 AD2d 716).
Notwithstanding the technical defects in claimant's motion, his request to be granted poor person status has been considered on the merits and is denied.


February 21, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant;s motion for permission to proceed as a poor person
1. Notice of Motion and Supporting Affidavit of Gabriel Mendez, pro se

2. Letter denying receipt of motion papers, of Frederick H. McGown, Esq., AAG

Filed papers: Claim; Answer