New York State Court of Claims

New York State Court of Claims

ACK v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, #2003-005-510, Claim No. 107057, Motion No. M-66253


Synopsis


Claimant's motion for poor person relief beyond the filing fee issue is denied.

Case Information

UID:
2003-005-510
Claimant(s):
DARRIN ACK 99A2716
Claimant short name:
ACK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107057
Motion number(s):
M-66253
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Darrin Ack,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 19, 2003, the following papers, numbered 1 to 2, were read on motion by Claimant for poor person relief beyond the filing fee issue:
  1. Affidavit in Support of Application
  1. Opposing papers
  1. Filed Papers: Claim
Upon the foregoing papers, this motion is denied.

Claimant seeks permission to proceed as a poor person and for assignment of counsel. Claimant has already had imposed an order on his application for a reduced filing fee herein pursuant to CPLR 1101(f) by Judge Richard E. Sise on January 9, 2003, setting the fee at $50.00. There are no other costs necessary to prosecute a claim in the Court of Claims, and thus no other privileges are available under CPLR article 11. To the extent that this motion seeks the appointment of counsel to represent the Claimant, relief that is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273), it is denied.

For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for Defendant's alleged negligence relating to an assault upon Claimant with hot water and oil, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, supra).

Furthermore, Claimant has failed to demonstrate that he served a copy of this motion upon the County Attorney as required by CPLR 1101(c), (see, Bowman v State of New York, 229 AD2d 1024). It also is not clear that the Defendant was ever served with the instant motion.

Therefore, the motion for poor person status and assignment of counsel is denied.


April 3, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims