New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-015-123, Claim No. 112345, Motion No. M-71924


Synopsis


Claimant's motion for a speedy trial and the assignment of counsel was denied.

Case Information

UID:
2006-015-123
Claimant(s):
GARY SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112345
Motion number(s):
M-71924
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Gary Smith, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: No AppearanceAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's motion seeking the appointment of counsel and for a speedy trial is denied. The underlying claim filed May 15, 2006 seeks unspecified damages for personal injuries allegedly sustained on March 30, 2006 at a place identified only as " 'DOC' Department of Corrections" as a result of the denial of necessary medical and/or psychological care and treatment. Claimant's supporting affidavit and his affidavit of service of the motion papers are unsworn.

Although the attorney general has not opposed the motion it must be denied.

Claimant offered no proof that his application was served upon the appropriate county attorney as required by statute (CPLR 1101 [c]). Failure to serve a county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; People v Calhoun, 2 Misc 3d 1009 (A); Harris v State of New York, 100 Misc 2d 1015). Moreover, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that courts should not routinely approve requests for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). Despite claimant's conclusory assertions to the contrary this claim does not rise to that level.

Additionally, claims filed in the Court of Claims are not subject to a motion seeking a speedy trial. Trials of prisoner pro se claims are held at regularly scheduled prison terms in the order in which the claims are filed.

Claimant's motion is in all respects denied.


September 6, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated May 15, 2006;
  2. Unsworn affidavit/affirmation of Gary Smith dated May 15, 2006.