New York State Court of Claims

New York State Court of Claims

SYDNEY v. THE STATE OF NEW YORK, #2004-028-573, Claim No. 107353-A, Motion No. M-68909


Synopsis


Claimant's application for poor person status is denied.

Case Information

UID:
2004-028-573
Claimant(s):
JOHNNY SYDNEY
Claimant short name:
SYDNEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107353-A
Motion number(s):
M-68909
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOHNNY SYDNEY, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
November 1, 2004
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:

  1. Notice of Motion and Supporting Affidavit of Johnny Sydney, filed August 2, 2004 (Sydney Affidavit);
  1. Opposition Papers: NONE.

Filed Papers: Verified Claim, filed February 18, 2003; Order, Sise, J.,

filed March 4, 2003.


An Order has previously been issued reducing the filing fee for this Claimant to $15.00. (Sydney v State of New York, Ct Cl., March 4, 2003, Sise, J., Claim No. 107353-A). This decision and order addresses Claimant's subsequent application for poor person status. Claimant's affidavit in support of the poor person relief contains no information beyond checked boxes and one word answers[1].

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. Here, Claimant has not filed an affidavit of service with the instant application. There is no proof whatsoever that the appropriate County Attorney's office and the Defendant have been served with the moving papers or that the Claimant has made any attempt to comply with the service requirements of CPLR 1101(c) and as such has failed to establish service of the moving papers in accordance with the CPLR. The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney and the Defendant, 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
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 for an alleged use of excessive force by corrections officers and this is the type of claim which is handled routinely on a contingent fee basis by counsel. Moreover, it appears Claimant was prepared to try this Claim himself (see footnote 1, supra). To the extent Claimant must mail pleadings to the Court and the Defendant, the Defendant 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, Ct Cl, NeMoyer, J., Claim No. 102325, Motion No. M-62803, UID#2000-006-962, January 9, 2001).

Based upon the foregoing, the motion is DENIED.


November 1, 2004
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court notes that this Claim had been scheduled for trial for July 7, 2004 and was adjourned without date due to Claimant's unavailability for medical reasons.