New York State Court of Claims

New York State Court of Claims

YOUNG v. THE STATE OF NEW YORK, #2003-019-532, Claim No. 106548, Motion No. M-66263


Claimant's motion for assignment of counsel and summary judgment is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order providing him poor person status and 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 August 23, 2002.
  2. ORDER, Read, P.J., Claim No. 106548, filed September 6, 2002.
  3. Notice of Motion No. M-66263, dated December 31, 2002, and filed January 9, 2003.
  4. "Response to Defendant's Demand to Produce Notice of Motion, Inmate Account Balance Sheet, and Affidavit in Support of Application Pursuant to CPLR 1101 (f)", of Rushawn Young, sworn to January 3, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated February 21, 2003, and filed February 24, 2003.
An Order has previously been issued by this Court reducing the filing fee for this Claimant to $20.00 pursuant to Court of Claims Act 11-a (1). (Young v State of New York, Ct Cl, September 6, 2002, Read, P.J., Claim No. 106548). 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 sent to the Attorney General and the Clerk of the Court. Claimant's failure to establish service on the county attorney is, in and of itself, grounds for denying this motion.[1]

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. In sum, this matter fails to rise to the level warranting assignment of counsel. Consequently, the Court declines to exercise its discretionary authority on this matter.

Parenthetically, the Court also notes that Claimant's motion papers include terminology that could be construed as requesting additional affirmative relief such as summary judgment. That having been said, however, on a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Moreover, under CPLR 3212, the proponent's "[f]ailure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers...." (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Here, Claimant has offered absolutely no evidentiary proof entitling him to judgment as a matter of law. Consequently, the Court finds that Claimant has failed to establish his right to judgment as a matter of law and, as such, to the extent that this motion can be construed as requesting such affirmative relief it is denied.

In view of the foregoing, it is ORDERED, that Claimant's motion, Motion No. M-66263, is DENIED.

March 25, 2003
Binghamton, New York

Judge of the Court of Claims

[1]After the filing of this motion, Claimant submitted correspondence to the Court and the Assistant Attorney General requesting an "Order Rechantment". The Court could not ascertain with any degree of certainty whether Claimant was seeking to withdraw his motion or to make corrections. The Court erred on the side of caution and left this motion on the Court's calendar. (Court's letter dated March 3, 2003).