New York State Court of Claims

New York State Court of Claims

DANIELS v. THE STATE OF NEW YORK, #2003-019-531, Claim No. 107270, Motion No. M-66429


Synopsis


Claimant's motion for assignment of counsel is denied.

Case Information

UID:
2003-019-531
Claimant(s):
CHARLES DANIELS
Claimant short name:
DANIELS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107270
Motion number(s):
M-66429
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CHARLES DANIELS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 25, 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 1101. 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 3, 2003.
  2. "Petition of [sic] Proceed in Forma Pauperis", Motion No. M-66429, sworn to January 29, 2003, and filed February 3, 2003.
  3. Affidavit of Charles Daniels, in support of Petition, sworn to January 29, 2003.
  4. ORDER, Sise, J., Claim No. 107270, filed February 19, 2003.
  5. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated March 5, 2003, and filed March 7, 2003.
An Order has previously been issued by this Court reducing the filing fee for this Claimant to $15.00 pursuant to Court of Claims Act 11-a (1). (Daniels v State of New York, Ct Cl, February 19, 2003, Sise, J., Claim No. 107270). The remainder of Claimant's request must be denied.


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 upon 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 and the type of case in which attorneys are typically retained on a contingency fee basis.


Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion for the appointment of counsel, Motion No. M-66429, is DENIED.


March 25, 2003
Binghamton, New York

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