New York State Court of Claims

New York State Court of Claims

HINES v. THE STATE OF NEW YORK, #2005-028-534, Claim No. 110624, Motion No. M-69991


Synopsis


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


Case Information

UID:
2005-028-534
Claimant(s):
MARIO HINES
Claimant short name:
HINES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110624
Motion number(s):
M-69991
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MARIO HINES, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis Acton, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 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 Mario Hines filed March 11, 2005, (Hines Affidavit);
2) Affidavit in Opposition of Assistant Attorney General Dennis Acton filed April 20, 2005 (Acton Affidavit).


Filed Papers: Verified Claim, filed March 11, 2005; Verified Answer filed April 20, 2005; Order, Sise, J., filed March 29, 2005.

An Order has previously been issued reducing the filing fee for this Claimant to $20.00. (Hines v State of New York, Ct Cl, March 29, 2005, Sise, J., Claim No. 110624). This decision and order addresses the remaining issue of Claimant's request for assigned counsel and poor person status. Defendant opposes the application.

CPLR 1101 (c) requires that "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 (see 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. 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
dism.
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 negligent supervision claim based upon the alleged failure to prevent an attack upon Claimant. As such, it is the type of claim which is often handled by counsel on a contingency fee basis. 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 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.


June 21, 2005
Albany, New York

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