New York State Court of Claims

New York State Court of Claims

GOODMAN v. THE STATE OF NEW YORK, #2005-019-538, Claim No. 110726, Motion No. M-70137


Synopsis


Claimant's motion for poor person relief is denied.

Case Information

UID:
2005-019-538
Claimant(s):
KENNETH GOODMAN
Claimant short name:
GOODMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110726
Motion number(s):
M-70137
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
KENNETH GOODMAN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 13, 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 and assigning counsel in this matter. (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 $25.00 as required by Court of Claims Act 11-a (1). (Goodman v State of New York, Ct Cl, April 21, 2005, Sise, P.J., Claim No. 110726).


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 a matter 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.


In view of the foregoing, it is ORDERED, that claimant's motion, Motion No. M-70137, is DENIED.


June 13, 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. Claim, filed April 4, 2005.
  2. ORDER, Sise, P.J., Claim No. 110726, filed April 21, 2005.
  3. "Petition of Forma Pauperis", Motion No. M-70137, dated March 20, 2005, and filed April 4, 2005.
  4. Affidavit of Kenneth Goodman, in support of motion, sworn to March 17, 2005, with attachment.
  5. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated June 7, 2005, and filed June 9, 1995.