New York State Court of Claims

New York State Court of Claims

MORRISON v. STATE OF NEW YORK, #2004-018-322, Claim No. 109437, Motion No. M-68629


Synopsis


Motion to proceed as a poor person denied.

Case Information

UID:
2004-018-322
Claimant(s):
JAMES MORRISON
Claimant short name:
MORRISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109437
Motion number(s):
M-68629
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JAMES MORRISONPro 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:
August 18, 2004
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. Defendant opposes the motion.

Claimant's seeks permission to proceed as a poor person. 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 Richard E. Sise, Presiding Judge of the Court of Claims, dated and filed June 10, 2004. This decision will address the balance of Claimant's motion.

After being granted a reduction in the filing fee, the appointment of counsel is the only other privilege of being given poor person status available to Claimant in this action. The appointment of counsel in this type of case, which is for an assault by a correction officer, 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; the facts are not complicated and the claim does not involve complex issues of law (see, Matter of Smiley, supra; Courtwright v State of New York, Ct. of Claims filed March 20, 1997, Corbett, J., Claim No. 95042, Motion No. M-54516).

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. There is no indication 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 in its entirety.


August 18, 2004
Syracuse, New York

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


The Court has considered the following documents in deciding this motion:


Affidavit of James Morrison, in Support of Petition for Permission

to Proceed as Poor Person..............................................................................1


Affirmation in Opposition to Poor Person Application.............................................2