New York State Court of Claims

New York State Court of Claims

ROSS v. THE STATE OF NEW YORK, ET AL, #2003-028-537, Claim No. 107073, Motion No. M-66259


Synopsis


Case Information

UID:
2003-028-537
Claimant(s):
RICHARD ROSS
Claimant short name:
ROSS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107073
Motion number(s):
M-66259
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RICHARD ROSS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael W. Friedman, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's application pursuant to CPLR 1101 for poor person status and assignment of counsel:

  1. Affidavit in Support of Application of Richard Ross filed December 12, 2002, (Ross Affidavit);

Opposition - None.


Filed Papers: Claim, filed December 12, 2002; Verified Answer filed

January 17, 2003; Order, Sise, J., filed January 10, 2003.


An Order has previously been issued reducing the filing fee for this Claimant to $25.00. (Ross v State of New York, Ct Cl, January 10, 2003, Sise, J., Claim No. 107073). This decision addresses the remaining issue of Claimant's request for assigned counsel and poor person status.

CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (see CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective. Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016.

There is no proof whatsoever that the appropriate County Attorney's office has been served with the moving papers or that the Claimant has made any attempt to comply with the service requirements of CPLR 1101(c). As such, the Claimant has failed to comply with the requirements of the statute, making his application defective. The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney, the application would nevertheless be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
to app dismissed 93 NY2d 1000; Pittman v State of New York, Claim No. 101942, Motion No. M-61372, UID#2000-019-511, Lebous, J., April 18, 2000) A review of the pleadings reveals this case to be a negligence claim based primarily upon the Defendant's failure to properly secure a trailer to a wagon and, as such, fails to rise to the level warranting assignment of counsel.

Inasmuch as the filing fee has been addressed, the prosecution of this matter in this court does not require the Claimant to pay any costs or fees. The Court may not waive the service requirements of the Court of Claims Act to permit Claimant to serve his claim by ordinary first class mail (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; see also Lichtenstein v State of New York, 93 NY2d 911, 912-913 [applying same principles to requirements of Court of Claims Act § 10]). The Court is not free to temper application of a rule of law, whether done in the exercise of discretion, equity or because there is no prejudice and a harsh result will be avoided (see Martin v State of New York, 185 Misc 2d 799, 804-805, collecting cases). To the extent Claimant must mail pleadings to the Clerk's office and the Defendant, the Department of Correctional Service provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds see Robbins v State of New York, Claim No. 102325, Motion No. M-62803, UID#2000-006-962, NeMoyer, J., January 9, 2001).

Consequently, Claimant's motion for an order granting him poor person status and for the assignment of counsel must be denied.

Based upon the foregoing, the motion is DENIED.


May 6, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims