New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-009-010, Claim No. 110036, Motion No. M-71024


Synopsis


Claimant's motion for a default judgment and poor person relief was denied.

Case Information

UID:
2006-009-010
Claimant(s):
FRED BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110036
Motion number(s):
M-71024
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
FRED BROWN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 16, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking a default judgment against the State, and also for


permission to proceed as a poor person.


The following papers were considered by the Court in connection with this motion:

Notice of Motion, "Motion for Default Judgment", Affidavit in Support, "Declaration in Support of Request for Leave to Proceed in Forma Pauperis", with Numerous Attachments 1,2,3,4


Affirmation in Opposition, with Exhibits 5

In his moving papers, claimant contends that the State has failed to appear in this claim, and as a result, a default judgment should be granted to him in the amount of $616.58 on this bailment claim.

Claimant, however, has failed to mention that defendant brought a pre-answer motion seeking an order dismissing the claim. By a Decision and Order dated February 23, 2005[1], this Court preserved the claim, but limited claimant's proof to those items of personal property that had been previously included in his institutional claim, pursuant to Court of Claims Act § 10(9)[2].

As set forth in defendant's Affirmation in Opposition, defendant served a Verified Answer to this claim simultaneously with service of a copy of the Court's Decision and Order to Motion No. M-69459. Accordingly, defendant has established timely service of its answer to this claim.

In this motion, claimant also seeks poor person relief. Initially, and following an examination of the papers submitted herein, the Court finds no proof that this motion was served upon the appropriate county attorney as required by statute (see CPLR § 1101[c]). Failure to serve a county attorney is, in and of itself, a basis for denial of the requested relief (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015).

Despite this defect in the motion papers, the Court will nevertheless address the merits of claimant's application.

The Court notes that the filing fee required for this claim has previously been determined pursuant to Court of Claims Act § 11-a(1) by an Order of Presiding Judge Richard E. Sise, dated and filed November 9, 2004.

Since there are no other costs in this Court, the only relief available under CPLR § 1102 that claimant can be seeking is the assignment of an attorney, who would serve without compensation. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). The cause of action asserted by claimant, sounding in bailment, is the type of claim that is typically handled by inmates without the benefit of an attorney. The Court finds that this case does not warrant the exercise of discretion in assigning counsel under the standards of Matter of Smiley, supra. Claimant's request for poor person status, after being considered on the merits, is denied.

Accordingly, based upon the foregoing, it is

ORDERED, that Motion No. M-71024 is hereby DENIED in all aspects.


February 16, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] See Brown v State of New York, Ct Cl, February 23, 2005, Midey, J., Claim No. 110036, Motion No. M-69459, (UID #2005-009-010). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] Interestingly, in his filed claim, claimant sought damages in the amount of $349.25, which the Court, in its Decision and Order, reduced to $323.11 in order to conform with the items listed in his administrative claim. In this motion, however, claimant seeks a default judgment in the amount of $616.58, by including additional items which had not been listed in his prior administrative claim.