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
, 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)
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,
Accordingly, based upon the foregoing, it is
ORDERED, that Motion No. M-71024 is hereby DENIED in all aspects.