New York State Court of Claims

New York State Court of Claims

MASON v. THE STATE OF NEW YORK, #2004-019-556, Claim No. 109285, Motion No. M-68536


Synopsis


Claimant's motion for assignment of counsel is denied.

Case Information

UID:
2004-019-556
Claimant(s):
ROBERT MASON
Claimant short name:
MASON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109285
Motion number(s):
M-68536
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT MASON, 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:
July 1, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate 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 underlying claim asserts a bailment cause of action arising in Elmira Correctional Facility on January 11, 2004 when various items of claimant's personal property were stolen or lost. Claimant's administrative grievance was denied and his subsequent appeal was disapproved on March 10, 2004. An Order has previously been issued by this court reducing the filing fee for this claimant to $25.00 pursuant to Court of Claims Act 11-a (1). (Mason v State of New York, Ct Cl, May 14, 2004, Sise, J., Claim No. 109285).


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]). There is no affidavit of service indicating that claimant served these motion papers on the applicable county attorney. Claimant's failure to establish such service 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 bailment case of average complexity. In sum, this case fails to rise to the level warranting assignment of counsel. Consequently, the court declines to exercise its discretionary authority on this matter.


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-68536, is DENIED.


July 1, 2004
Binghamton, New York

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


The court has considered the following papers in connection with this motion:
  1. Claim, filed April 30, 2004.
  2. ORDER, Sise, J., Claim No. 109285, filed May 14, 2004.
  3. "Petition to Proceed in Forma Pauperis", of Robert Mason, dated and sworn to April 16, 2004, and filed April 30, 2004.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated June 22, 2004, and filed June 24, 2004.