New York State Court of Claims

New York State Court of Claims

VELEZ v. THE STATE OF NEW YORK, #2005-019-579, Claim No. 106580, Motion No. M-70779


Claimant's motion for a trial date is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Wendy E. Morcio, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 14, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, requests a trial date for this claim.[1] 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 defenses.[2]

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 [3]; Graham v Stillman, 100 AD2d 893).

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.[3] Nevertheless, 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 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 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 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.

November 14, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed September 4, 2002.
  2. Answer, filed October 11, 2002.
  3. "Notice of Motion Readiness for Trial", Motion No. M-70779, dated September 29, 2005, and filed October 5, 2005.
  4. "Notice of Trial", dated September 29, 2005, and sworn to September 29, 2005.
  5. Affidavit of Wendy E. Morcio, AAG, in opposition to motion, sworn to October 20, 2005, and filed October 21, 2005, with attached exhibits.
  6. "Motion in Opposition to Defendants/Request for Assignment of Counsel", of John Velez, dated November 3, 2005.

[1]The court deems this motion as seeking a trial date, rather than a trial preference. Assuming, arguendo, claimant was requesting a trail preference, the court would have denied the request for failure to comply with CPLR 3403.
[2]The State avers that a motion for summary judgment based upon the affirmative defenses contained in its answer will be submitted shortly.
[3]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).