New York State Court of Claims

New York State Court of Claims

FIGUEROA v. THE STATE OF NEW YORK, #2003-019-518, Claim No. 97864, Motion No. M-66307


Synopsis


Claimant's motion for assignment of counsel is denied.

Case Information

UID:
2003-019-518
Claimant(s):
VICTOR FIGUEROA
Claimant short name:
FIGUEROA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97864
Motion number(s):
M-66307
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
VICTOR FIGUEROA, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 24, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, appearing pro se, moves for an order assigning counsel to assist him in litigating this matter pursuant to CPLR 1102. The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed February 25, 1998.
  2. Notice of Motion, dated January 20, 2003, and filed January 23, 2003.
  3. Affidavit of Victor Figueroa, in support of motion, dated and sworn to January 20, 2003.
  4. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February 14, 2003, and filed February 18, 2003.
A motion to proceed as a poor person must be served upon the parties, as well as the county attorney where the action is triable or on corporation counsel if the action is triable in New York City. (CPLR 1101 [c]). The affidavit of service in this matter indicates that the motion papers were served on the Attorney General's office, but not the applicable county attorney. Claimant's failure to establish service on the county attorney is, in and of itself, grounds for denying this motion.


Additionally, as a separate and distinct basis for denial of Claimant's motion, it is well-settled that the appointment of counsel is discretionary in civil matters. (Matter of Smiley, 36 NY2d 433, 438). Generally, counsel will not routinely be assigned except in a proper case, such as one involving "grievous forfeiture or loss of a fundamental right". (Morgenthau v Garcia, 148 Misc 2d 900, 903). A review of the pleadings before the Court in this case reveals a case of average complexity. Claimant also asserts that his inability to read and comprehend further supports his request for legal counsel. The Court notes that Claimant apparently has been able to file and serve his Claim and submit several letters to the Clerk of the Court without any difficulty. The Court declines to appoint legal counsel in this matter. Finally, the Court notes that at the time this motion was filed Claimant was incarcerated in Gouverneur Correctional Facility. The State avers that Claimant has since been released from State custody. Claimant is reminded that it is his responsibility to communicate in writing to the Clerk of the Court any change in address within ten days thereof. (22 NYCRR 206.6 [f]).


Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion for the appointment of counsel, Motion No. M-66307, is DENIED.


February 24, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims