Claimant, an inmate appearing pro se, requests a trial date for this
The State of New York (hereinafter
"State") opposes the motion.
This claim was filed with the Clerk of the Court on September 4, 2002. The
State filed a verified answer on October 11, 2002 containing various affirmative
With respect to claimant's request for a trial date, the scheduling of prisoner
pro se claims fall within the discretion of the court and this matter, as with
all claims, will be scheduled as soon as practicable. (22 NYCRR 206.13).
Moreover, the filing of a note of issue and certificate of readiness is not
required for prisoner pro se claims. (22 NYCRR 206.12 [a]).
To the extent that claimant makes references to a demand for a jury trial, such
request is denied. There is no right to a jury trial in the Court of Claims.
(Court of Claims Act § 12 ; Graham v Stillman, 100 AD2d
Finally, claimant's reply papers include a request for the assignment of
counsel, although claimant has not submitted a formal motion or cross-motion
requesting such relief.
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
papers do not establish service on the county attorney which is, in and of
itself, grounds for denying such request. Additionally, it is well-settled that
the appointment of counsel is discretionary in civil matters. (Matter of
, 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 case of
average complexity. In sum, this case fails to rise to the level warranting
assignment of counsel and, as such, claimant's informal request for the
assignment of counsel is denied.
In view of the foregoing, it is ORDERED that the claimant's motion, Motion No.
M-70779, is DENIED.
Claim, filed September 4, 2002.
Answer, filed October 11, 2002.
"Notice of Motion Readiness for Trial", Motion No. M-70779, dated September 29,
2005, and filed October 5, 2005.
"Notice of Trial", dated September 29, 2005, and sworn to September 29,
Affidavit of Wendy E. Morcio, AAG, in opposition to motion, sworn to October
20, 2005, and filed October 21, 2005, with attached exhibits.
"Motion in Opposition to Defendants/Request for Assignment of Counsel", of John
Velez, dated November 3, 2005.
An Order has previously been issued by this
court reducing the filing fee for this claimant to $15.00 pursuant to Court of
Claims Act 11-a (1). (Velez v State of New York
, Ct Cl, September 13,
2002, Read, P.J., Claim No. 106580).