New York State Court of Claims

New York State Court of Claims

GEORGE v. THE STATE OF NEW YORK, #2005-019-534, Claim No. 110454, Motion No. M-69920


Synopsis


Claimant's motion for poor person relief is denied.

Case Information

UID:
2005-019-534
Claimant(s):
LLEWELLYN GEORGE
Claimant short name:
GEORGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110454
Motion number(s):
M-69920
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LLEWELLYN GEORGE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 2, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for an order designating him as a poor person. (CPLR 1101). The State of New York (hereinafter "State") opposes the motion.

An Order has previously been issued by this court reducing the filing fee for this claimant to $20.00 as required by Court of Claims Act 11-a (1). (George v State of New York, Ct Cl, February 16, 2005, Sise, P.J., Claim No. 110454).


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. (CPLR 1101 [c]). Claimant's affidavit of service does not demonstrate service on any county attorney. Claimant's failure to establish service on the proper county attorney 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 allegations of medical malpractice of average complexity which attorneys normally accept on a contingent fee basis. Claimant has not indicated any attempts to retain counsel on a contingent fee basis. In any event, this case fails to rise to the level warranting assignment of counsel. Consequently, the court declines to exercise its discretionary authority on this matter.


Finally, upon a review of the pleadings in this matter, the court has this same date issued an Order to Show Cause directing the parties to submit written statements and any relevant proof to establish whether the claim was properly served on the Office of the Attorney General in accordance with the requirements of Court of Claims Act 10 and 11.


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-69920, is DENIED.

May 2, 2005
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. ORDER, Sise, P.J., Claim No. 110454, filed February 16, 2005.
  2. Claim, filed February 3, 2005.
  3. Notice of Motion No. M-69920, dated March 21, 2005, and filed March 24, 2005.
  4. Affidavit of Llewellyn George, in support of motion, sworn to March 21, 2005.
  5. "Affirmation" of Llewellyn George, in support of motion, sworn to March 21, 2005, with attached exhibits.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April 25, 2005, and filed April 27, 2005.