New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2004-032-059, Claim No. 109279, Motion No. M-68514


Synopsis



Case Information

UID:
2004-032-059
Claimant(s):
JULIO PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109279
Motion number(s):
M-68514
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Julio Perez, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Stephen J. Maher, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 30, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks leave to proceed as a poor person pursuant to CPLR 1101. Although his motion is technically defective, in that the County Attorney for the county in which the claim arose was not served, the Court will nevertheless address the substance of his request for relief.

The claim in this action alleges that, beginning in March 2004, the nursing and physical therapy staff at Upstate Correctional Facility have failed to provide proper treatment for his painful shoulder and back.
Claimant's request for reduction of the filing fee has already been addressed in the Order of Judge Richard E. Sise, issued May 14, 2004. Thus, the only relief available under CPLR 1102 that claimant can be seeking at this juncture is the assignment of an attorney, who would serve without compensation.
Although courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case, such private litigants have no absolute right to assigned counsel. Because appointed counsel in these situations must provide representation without receiving any compensation, courts should not make such appointment unless the litigant is faced with a "grievous forfeiture or loss of a fundamental...right" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999], quoting Morgenthau v Garcia, 148 Misc 2d 900, 903
[NY Co Sup Ct 1990]; see also Matter of Smiley, 36 NY2d 433 [1975]; Jacox v Jacox, 43 AD2d 716 [2d Dept 1973]).
Because the instant claim does not involve either a grievous forfeiture or loss of a fundamental right, the Court would not be justified in exercising its discretion to appoint an attorney to appear without compensation. Notwithstanding the technical defect in claimant's motion, his request to be granted poor person status has been considered on the merits and is denied.




August 30, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion for permission to proceed as a poor person:
1. Notice of Motion and Supporting Affidavit of Julio Perez, pro se

2. Affirmation in Opposition of Stephen J. Maher, Esq., AAG

Filed papers: Claim