New York State Court of Claims

New York State Court of Claims

HOLMES v. THE STATE OF NEW YORK, #2005-028-508, Claim No. 110026, Motion No. M-69379


Synopsis


Claimant's application for poor person status and assignment of counsel is denied.

Case Information

UID:
2005-028-508
Claimant(s):
ANTHONY HOLMES
Claimant short name:
HOLMES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110026
Motion number(s):
M-69379
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ANTHONY HOLMES, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 27, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's application pursuant to CPLR 1101 for poor person status and assignment of counsel:

  1. Affidavit in Support of Application of Anthony Holmes filed October 28, 2004, (Holmes Affidavit);

Opposition - None.


Filed Papers: Verified Claim, filed October 28, 2004; Verified Answer filed

December 1, 2004; Order, Sise, P.J., filed November 5, 2004.

An Order has previously been issued reducing the filing fee for this Claimant to $45.00. (Holmes v State of New York, Ct Cl, November 5, 2004, Sise, P. J., Claim No. 110026). This decision addresses the remaining issue of Claimant's request for assigned counsel and poor person status.

CPLR 1101 (c) requires that "[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable..." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective. Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016.

There is no proof whatsoever that the appropriate County Attorney's office has been served with the moving papers or that the Claimant has made any attempt to comply with the service requirements of CPLR 1101(c). As such, the Claimant has failed to comply with the requirements of the statute, making his application defective. The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney, the application would nevertheless be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
to app dismissed 93 NY2d 1000; Pittman v State of New York, Claim No. 101942, Motion No. M-61372, UID#2000-019-511, Lebous, J., April, 18, 2000). A review of the pleadings reveals this case to be a wrongful confinement claim based upon the imposition of a prison disciplinary penalty which was subsequently reversed. As such, the Claim fails to rise to the level warranting assignment of counsel.

Inasmuch as the filing fee has been addressed, the prosecution of this matter in this court does not require the Claimant to pay any costs or fees. To the extent Claimant must mail pleadings to the Clerk of the Court and the Defendant, the Defendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds (see Robbins v State of New York, Claim No. 102325, Motion No. M-62803, UID #2000-006-962, NeMoyer, J., January 9, 2001).

Consequently, Claimant's motion for an order granting him poor person status and for the assignment of counsel must be denied.

Based upon the foregoing, the motion is DENIED.


January 27, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims