New York State Court of Claims

New York State Court of Claims

MADDOX v. THE STATE OF NEW YORK, #2003-015-317, Claim No. 107082, Motion No. M-66256


Synopsis


Inmate claimant's application for assignment of counsel denied where appropriate county attorney was not on notice of application and notice of claim did not involve grievance forfeiture or loss of fundamental right.

Case Information

UID:
2003-015-317
Claimant(s):
DWIGHT MADDOX
Claimant short name:
MADDOX
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107082
Motion number(s):
M-66256
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Dwight Maddox, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
March 5, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's application pursuant to CPLR 1101 and 1102 for poor person relief including the assignment of counsel to pursue his claim is denied. That portion of movant's application seeking a reduction of the $50.00 filing fee imposed by Court of Claims Act § 11-a was previously granted by the order of the Hon. Richard E. Sise of this Court dated January 14, 2003. The remaining portion seeking the assignment of counsel was thereafter assigned to this chamber.

The application must be denied for several reasons. First, the supporting affidavit filed without the required notice of motion (CPLR 2211), fails to allege any facts from which the merits of the claim might be ascertained (see, CPLR 1101 (a); Teeter, Matter of v Reed, 57 AD2d 735). Additionally, movant offered no proof that the application was served upon the Washington County Attorney as required by statute (CPLR 1101 (c)). The failure to serve the appropriate county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015). Finally, it has been held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Smiley, Matter of, 36 NY2d 433). While an attorney may be assigned in a case involving "grievous forfeiture or loss of a fundamental right" (Morgenthau v Garcia, 148 Misc 2d 900, 903; Wills v City of Troy, 258 AD2d 849) the application provides no factual basis upon which to determine that such a forfeiture or loss is implicated in this matter.

The application is therefore denied.



March 5, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Affidavit in support of motion for poor person relief sworn to December 11, 2002.