New York State Court of Claims

New York State Court of Claims

GAGNON v. STATE OF NEW YORK, #2003-018-203, Claim No. 106972, Motion No. M-66223


Synopsis


Claimant's motion for assignment of counsel is denied.

Case Information

UID:
2003-018-203
Claimant(s):
ROBERT D. GAGNON, JR. The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
GAGNON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106972
Motion number(s):
M-66223
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROBERT D. GAGNON, JR.Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant brings this motion for an order granting him poor person relief pursuant to


Article 11 of the CPLR. The benefits of being granted permission to proceed as a poor person are set forth in CPLR 1102, which include the assignment of counsel, relief from the payment of costs and fees, and where permission to appeal by order has been granted, a stenographic transcript and permission to submit typewritten appellate briefs and appendices. The portion of claimant's motion seeking relief from the payment of costs and fees has been addressed by separate order of the Honorable Susan Phillips Read, former Presiding Judge of the Court of Claims, dated and filed December 24, 2002. This decision will address the balance of claimant's motion, assignment of counsel.

The appointment of counsel in this type of case, which is for damages as a result of the State's alleged negligence and commission of tortuous actions against claimant, is not required by the constitution or by statute; it is discretionary (See, Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (See, Matter of Smiley, supra; Courtwright v State of New York, Ct Cl filed March 20, 1997, J. Corbett, Claim No. 95042, Motion No. M-54516). However, claimant may be able to obtain an attorney to represent him on a contingency fee basis.

Claimant has also failed to comply with the requirements of CPLR 1101(c) which directs that a copy of the notice of motion must be served upon the county attorney in the county in which the action is triable. The affidavit of service claimant submitted does not indicate that the County Attorney was served. The motion can be denied on this ground alone (See, Bowman v State of New York 229 AD2d 1024).

Based upon the foregoing, claimant's motion is DENIED.

February 18, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in determining the motion:
Notice of Motion............................................................................................1
Affidavit of Robert D. Gagnon, Jr. in support of poor person application,
with all exhibits attached thereto..................................................................2


Filed Documents:


Claim...............................................................................................................3


Defendant submitted no opposition to the motion.